Act of Indecency - Armstrong Legal

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Act of Indecency


The offence of committing a sexual act replaced the offence of committing an act of indecency in New South Wales on 1 December 2018. A person may still be charged with committing an act of indecency if the alleged conduct occurred prior to 1 December 2018.

In NSW it can be an offence to do any sexual act towards a person without their consent, even if you do not touch them. It is also an offence to instruct or encourage another person to do a sexual act. If the sexual act involves touching or penetration it will amount to a more serious charge which may include, indecent assault, sexual assault or aggravated sexual assault.

A person can be charged if they do an act which is sexual in nature which a reasonable person would consider to be unacceptable conduct or against community standards. They can also be charged if they encourage someone else to do such an act. The offence carries a maximum penalty of two years imprisonment if the victim is under 16 years of age, or 18 months if they are older.

The Offence of Act of Indecency

The offence of Act of Indecency is contained in s 61N of the Crimes Act 1900 (NSW) and states:

  • 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.

What Actions Might Constitute an “Act of Indecency”?

Common examples of the offence of Act of Indecency include:

  • Exposing your penis or vagina in front of someone;
  • Standing in a laneway and masturbating yourself as another person walks past;
  • Sending a naked photo of yourself to another person; or
  • Pretending to perform a sexual act on another person.

What the Police Must Prove

To convict you of the offence of Act of Indecency against a person under 16 years of age, the prosecution must prove each of the following matters beyond a reasonable doubt:

  • That you did an act which was indecent or that you incited another person to do the act;
  • That the act was done towards another person; and
  • That the person was under 16 years of age.

To convict you of the offence of Act of Indecency against a person over 16 years of age, the prosecution must prove each of the following matters beyond reasonable doubt:

  • That you did an act which was indecent or that you incited another person to do the act;
  • That the act was done towards another person;
  • That the person did not consent; and
  • That the person was over 16 years of age.

Possible Defences for Act of Indecency

The most common ways to defend this charge are:

  • To argue that the act was not indecent;
  • To argue that the act was not done towards or directed at another person;
  • To argue that the act was consensual.

You can also partially defend the charge of Act of Indecency towards a person under 16 years of age by arguing that at the time of the offence the person was over 16 years of age. You are still likely to be charged with the less serious charge of Act of Indecency towards a person over 16 years of age.

Which court will hear your matter?

The offence of Act of Indecency is a Table 2 offence which means that it will be finalised with in the Local Court unless the prosecutor elects to have it finalised in the District Court.

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

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