Aggravated Indecent Assault

Aggravated indecent assault is an offence under Section 61 Capital M of the New South Wales Crimes Act of 1900. It’s where a person commits an act of indecency before, during, or after assaulting another person. And it’s done in circumstances of aggravation. Now an act of indecency must have some kind of sexual element; for example touching of private parts, touching to obtain sexual gratification, exposure before, during, or after touching the other person. Circumstances of aggravation are where two or more people were present at the time, or the complainant was under your authority; for example you are the carer, babysitter, teacher, employer, or where the other person has what’s called a cognitive impairment; that is below average intellectual function, also if the person has a serious physical disability; that is something that affects the quality of their lives. The maximum penalty for aggravated indecent assault is seven years imprisonment if the matter is decided in the district court. This increases to 10 years imprisonment if the other person the complainant was under 16 years of age. If the case stays in the local court the maximum penalty is two years imprisonment. For you to be found guilty the prosecution must prove beyond reasonable doubt, that one, you committed an assault. Now the act does not have to be malicious, or to have caused physical pain or suffering. It’s enough that you deliberately touch the other person without their consent. Secondly that the assault was a indecent. There’s no list of what is indecent and what is not. Indecent depends on the ordinary standards of respectable people in the community and you can depend on a range of factors, the nature of the act itself of course, the circumstances of the conduct, your relationship with the other person. However the action must have some form of sexual elements. Thirdly, that there was no consent; that is that the other person did not agree to the act. In other words did not give conscious and voluntary permission for the act to take place. Now consent again can be determined through a range of factors, words, actions, the location, your relationship with the other person, and fourthly that you knew that no consent was given or were reckless as to whether or not consent was given. Now you must be found not guilty if you honestly but mistakenly thought that consent was given by the other person. This is what’s called a subjective test. It’s about your state of mind what you believed at the time, and it’s something that can be difficult to determine, and depend on a range of factors. Recklessness means that the court can look at whether you make enquiries about whether the other person consented or not, and they can see whether or not you are reckless about whether they can consented. Fifthly and lastly, there must have been one of the outline circumstances of aggravation. The defence’s that are available are consent where you believe that the other person was consenting, proper medical purpose, such as a gynecological procedure, pap smear or mammogram, self defence, where you committed the act to defend yourself or another person, necessity, where you could not help to commit the act because it was an emergency situation and you had to do something to get away, duress, where you were forced to commit the acts. In our experience the penalties that you are likely to face for aggravated indecent assault include a section 10, which means you’re guilty but no criminal conviction is recorded against your name, a good behavior bond, for example a section 9 good behaviour bond which is a good behavior one that carries a criminal conviction, a suspended sentence, which is a good behavior bond but if you breach that by committing a further offence you will likely be sent to prison, and as a last resort full-time imprisonment for the most serious cases.

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