Act of Indecency without Consent

In the ACT, it is a criminal offence to commit an act of indecency. The maximum penalty ranges from 7 years to 19 years’ imprisonment, depending on the offence.

Acts of indecency are divided into a number of offences, including acts of indecency in the first, second and third degree, acts of indecency without consent, acts of indecency with young people, and acts of indecency with young people under special care.

The maximum penalties for various acts of indecency offences are categorised as follows:

What is an Act of Indecency without consent?

Pursuant to section 60 of the Crimes Act 1900, it is an offence to commit an act of indecency without the other person’s consent. 

To understand why you may be charged with an act of indecency offence, it is important to acknowledge the broad interpretation given to an ‘act of indecency’. The Crimes Act 1900 does not define what constitutes an act of indecency, however many court judgements have dealt with this question. The accepted test to determine whether someone’s conduct constitutes an act of indecency is whether the behaviour was “unbecoming or offensive to common propriety”, “an affront to modesty”, or would “offend the ordinary modesty of the average person”.

The following acts constitute an act of indecency without consent:

• Your 16-year-old neighbour offers to wash your windows for you. After he is finished, you invite him in for a cold drink and show him some pornography on your laptop.
• You are walking up the stairs at a rugby game behind a woman. You put your hand up her skirt and grab her buttocks.

What must be proven?

For a person to be found guilty of an act of indecency without consent the prosecution must prove each of the following matters beyond a reasonable doubt: 

• You committed an act; and 
• The act was an act of indecency; and 
• The act was either:
  • Committed on another person without their consent; or 
  • Committed in the presence of another person without that person’s consent; and 
  • You were reckless as to whether the person consented to the act of indecency that was committed on them or in their presence. 

If the prosecution do not prove every single one of the above elements, you will be found not guilty. 

Which Court Will Hear Your Matter?

This offence is indictable, which means that it can be dealt with in either the Magistrates Court or the Supreme Court. 

The prosecution can elect for your matter to remain in the Magistrates Court, where the maximum penalty is reduced two years’ imprisonment. If the prosecution does not elect summary jurisdiction, you can consent to the jurisdiction of the Magistrates Court which means that your matter will remain in the Magistrates Court. Alternatively, your matter will be committed to the Supreme Court and you will appear before a Judge and/or jury. 

Possible Defences for Act of Indecency Without Consent

The following defences may be available for an act of indecency without consent charge:

• To maintain your innocence if you did not commit the act; or
• To argue that the act was not an act of indecency; or
• To argue that the person consented to the act; or
• To argue that you were not reckless as to whether the person consented;
• If the act is alleged to have been committed in the presence of a person, to argue that the act was not committed in their presence (for example, that you were too far away from them for the act to have been committed ‘in their presence’); or
• If the act is alleged to have been committed while acting in company with someone else, to argue that the act was not committed while acting in company with that person.

Common Questions about act of indecency without consent

Will I receive a criminal conviction?

A conviction and criminal record for this offence is very likely. 

In the ACT, a court can impose any of the following penalties for an act of indecency without consent charge:

• Full-time imprisonment
• Intensive Corrections Order (ICO)
• Suspended Sentence 
• Fine
• Good Behaviour Order 
• Non-conviction 

The consequences of a conviction can be serious depending upon what you do for a living. Some jobs require you to have no criminal convictions and a conviction for incest might jeopardise your job or make it difficult to obtain visas for overseas travel. Moreover, a conviction for an offence of a sexual nature can completely rule out certain career paths such as teaching and a range of government employment options. Sexual offences also often result in sentences that include imprisonment even where a person has no previous convictions. 

Will I go to gaol for an act of indecency without consent charge?

The offence carries a maximum penalty of full-time imprisonment. It is possible that you may be sentenced to a term of full-time imprisonment if you are found guilty of, or plead guilty to, this offence even if you do not have any prior criminal convictions.