Indecent Assault


Section 61 Capital L of the Crimes Act 1900 here in NSW makes it an offence to commit an act of indecency before, during, or after assaulting another person. To be guilty there must be some kind of sexual element, for example touching of the private parts, touching to obtain sexual gratification, or exposure before, during, or after touching the other person. The maximum penalty for the offence is five years imprisonment if the case is decided up in the district court. However indecent assault is what’s called a summary offence, which means that it usually stays in the local court where the maximum penalty is two years imprisonment. For you to be found guilty of indecent assault the prosecution must prove beyond reasonable doubt, that one, you committed an assault. Now it doesn’t have to be a malicious act and it doesn’t have to cause physical pain or suffering. It’s enough that you deliberately touch the other person without their consent. In some cases it may be enough if you simply motioned towards touching them. The second thing is that the assault was indecent. Indecent is determined through the ordinary standards of respectable people in the community and depends on a range of factors. It can depend on the nature of the act itself, the circumstances of the conduct, the relationship between you and the other person, but there has to be some sort of sexual element to the act. The third thing is that there was no consent, that is that the other person didn’t agree to the act. In other words did not give conscious and voluntary permission for the act to be committed. Again consent can be determined through a range of factors through words, through actions, through location, through your relationship with the other person. The fourth thing is that you knew that no consent was given or that you were reckless as to whether consent was given or not. Now you’re not guilty if you honestly but mistakenly thought that consent was given. Now this is a subjective test. What that means is your state of mind is relevant, what you believe at the time. It’s something that’s difficult to determine and again depends on a range of factors. Recklessness can be determined by looking at whether you made enquiries as to whether or not the other person consented, or through other actions that surround the incident. The defence’s that are available to indecent assault are consent, that is where you believe that the other person was consenting, proper medical purpose, such as gynaecological procedure, pap smear, or mammogram, self-defence, where you committed the act to defend yourself or to defend another person, necessity, where you could not help to commit the act to get out of an emergency situation, duress, if you were forced to commit the act. In our experience the most likely penalty that your face if you’re found guilty or if you plead guilty to indecent assault are section 10, which means you’re guilty but no criminal conviction is recorded against you, or a good behaviour bond with a conviction, which is called a section 9 good behaviour bond, or if it’s more serious what’s called a suspended sentence, which is a good behaviour bond, but if you breach it by committing a further offence you will likely be sent to prison, or the last resort is full time imprisonment.

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