Act of Indecency

The offence of Act of Indecency carries a maximum penalty of 2 years imprisonment if the complainant is under the age of 16 years old and 18 months imprisonment if the complainant is over the age of 16 years old.

What is the Act of Indecency?

Act of Indecency was contained under section 61N of the Crimes Act 1900 (NSW) and stated:

• Any person who commits an act of indecency with or towards a person under the age of 16 years, or incites a person under that age to an act of indecency with or towards that or another person, is liable to imprisonment for 2 years.

• Any person who commits an act of indecency with or towards a person of the age of 16 years or above, or incites a person of the age of 16 years or above to an act of indecency with or towards that or another person, is liable to imprisonment for 18 months.

Meaning, it is an offence to commit an indecent act to any person who is under the age of 16 or to encourage another person to commit an indecent act to any person who is under the age of 16. Similarly, it is an offence to commit an indecent act to someone who is over the age of 16 or to encourage another person to commit an indecent act to someone who is over the age of 16. The only difference between subsection 1 and 2, is the imprisonment period depending on the complainant’s age. 

Act of Indecency is a historical offence and is something that you can still be charged with if the offence occurred before 1 December 2018. 

The following acts constitute Act of Indecency:

• Exposing your genitals in front of someone.
• Masturbating in front of someone. 

What Must be Proven?

For a person to be found guilty of Act of Indecency, the Prosecution must prove each of the following matters beyond a reasonable doubt:

• That you committed an act which was indecent or that you incited another person to commit the act;
• That the act was done to another person;
• That the other person did not consent;
• That the person in question was above/under the age of 16 years old (depending on the charge)

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

Which Court Will Hear the Matter?

This offence is a Table 2 offence, which means that it will be dealt with in the Local Court unless the Prosecution elects to have the matter dealt with in the District Court.

Possible Defences to an Act of Indecency charge

The following defences may be available for an Act of Indecency charge:

• The act was not indecent
• The act was not done towards or directed at another person
• The complainant gave legal consent (if they were above the age of 16)
• Duress.

Common Questions about Act of Indecency

Will I receive a criminal conviction?

A conviction and criminal record for this offence is likely.

In NSW, a Court can impose any of the following penalties for an Act of Indecency charge:

• Gaol Sentence
• Intensive Corrections Order (ICO)
• Community Corrections Orders (CCO)
• Conditional Release Order with conviction (CRO)
• Fine
• Conditional Release Order without conviction (CRO)
• S10A
• Section 10 

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 an Act of Indecency charge might jeopardise your job or make it difficult to obtain visas for overseas travel. Moreover, a conviction for an offence of Indecency can rule out certain career paths.

Will I go to Gaol for an Act of Indecency charge?

It is possible to receive an imprisonment sentence for this charge, so it is important that you obtain legal advice. 

What if the other person gave consent?

Consent is a very complicated legal term which can be read about further using this link [INSERT].

Will I end up on the sex offender register?

If the complainant in your matter was under the age of 16 years, it is probable that you will be on the sex offender register.  

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.