The offence of Sexual Touching replaced Indecent Assault in New South Wales on 1 December 2018. A person may still be charged with Indecent Assault if the alleged conduct occurred prior to 1 December 2018.
The Maximum Penalty for the Charge of Indecent Assault (Section 61L Of The Crimes Act) is five years imprisonment.
In NSW, a court can impose any of the following penalties for an Indecent Assault charge.
The Definition of Indecent Assault
This offence is defined in section 61L of the Crimes Act 1900 (NSW), which states that:
Any person who assaults another person and, at the time of, or immediately before or after, the assault, commits an act of indecency on or in the presence of the other person, is liable to imprisonment for 5 years.
What Actions Might Constitute an Indecent Assault?
- The slightest touch / physical contact (however minimal) is sufficient to amount to an assault. This excludes touching in the course of ordinary everyday life.
- The intentional touching, even over clothes, of breasts, anus, vagina or penis.
- A kiss, when it has been made clear the kiss is unwanted.
- Intentionally rubbing your groin against another, example; on a busy train when the other person has not given consent.
What the Police Must Prove
The essential elements that the prosecution has to prove beyond a reasonable doubt are:
- that the accused assaulted the complainant, and
- that the assault was indecent, and
- that the assault was without the consent of the complainant, and
- that the accused knew that the complainant was not consenting, or he/she realised that there was a possibility that the complainant was not consenting but he/she went ahead anyway, or he/she did not even think about whether the complainant was consenting or not — in other words, he/she did not care whether the complainant was consenting.
The Police must prove every one of these elements. You can only find [the accused] guilty if the Police/Crown proves each of these matters beyond a reasonable doubt.
1. The Accused Assaulted the Complainant
Here the Crown (Police) must prove beyond a reasonable doubt that the accused by his/her act assaulted the complainant.
An assault means any deliberate act of sexual nature with, or towards, another person that falls short of touching or penetration. It is an act which the reasonable person would consider to be contrary to community standards of decency.
The slightest touch/physical contact (however minimal) is sufficient to amount to an assault and it does not have to be a hostile or aggressive act, or one that caused the complainant fear or pain.
Examples include exposing one’s self or masturbating in front of another person.
2. The Assault was Indecent
The Crown (Police) must prove beyond reasonable doubt that the assault was indecent. For an assault to be “indecent” it must have a sexual connotation.
The word “indecent” means contrary to the ordinary standards of respectable people in the community.
If the accused touches the complainant’s body or uses his/her body to touch the complainant in a way which clearly gives rise to a sexual connotation, this is sufficient to establish that the assault was indecent.
For example, touching the genitals or anus of a male or the genitals or breast of a female.
However, if the assault does not carry a clear sexual connotation, the Crown must show that the accused’s conduct was accompanied by an intention to obtain sexual gratification. That is, the conduct went hand in hand with the intention to obtain sexual gratification.
In deciding whether the Crown has proved this element, all the surrounding circumstances including the accused’ words and/or actions, the respective ages of the accused and the complainant, any relationship which may have existed between them and the nature of the act relied upon, is all taken into consideration.
3. The Assault was Committed Without the Complainant’s Consent
[Note: Consent is not a defence when the complainant is a child under 16 years]
In order to establish that the touching was without consent and therefore an assault, the Crown (Police) must prove beyond reasonable doubt that the accused touched the complainant without his/her consent knowing that he/she was not consenting.
Consent involves the conscious and voluntary permission by the complainant to the accused to touch the complainant’s body in the manner that he/she did.
Consent or the absence of consent can be communicated by the words or even acts of the complainant.
4. The Accused Knew that the Complainant was not Consenting
The Crown (Police) must also prove beyond reasonable doubt that the accused knew the complainant was not consenting. Here, consideration is placed on the actual state of mind of the accused at the time of the act.
This element requires one to look at what was going on in the mind of the accused. And in deciding this issue you can have regard to all the surrounding circumstances.
The fourth element is also satisfied if the Crown proves that the accused realised that there was a possibility that the complainant was not consenting to the act, but he/she went ahead anyway.
The Crown can also prove this fourth element if it proves beyond reasonable doubt that the accused didn’t even think about whether he/she was consenting to the act or not, treating the question of whether he/she was not consenting as irrelevant.
If however the accused honestly, though wrongly, believed the complainant was consenting to the act, then he/she is not guilty.
This is because if that was the position, the Crown cannot prove the fourth element.
Possible Defences for Indecent Assault
A person charged with indecent assault may defend the charge by arguing:
- that the indecent assault was consensual;
- that they believed on reasonable grounds that there was consent.
Which Court will Hear this Matter?
This charge is a Table 2 offence which means that the DPP can elect to have the matter dealt with in the District Court, however if no election is made, it will be heard by a Police Prosecutor in the Local Court.
If you require legal advice or representation in any legal matter, please contact Armstrong Legal.