What is Indecent Assault in NSW?
Indecent assault charges are laid frequently by the New South Wales Police. However, 61L of the Crimes Act 1900 has been repealed. That section stated;
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.
Sexual assault charges are extremely serious sexual offence that could result in full time custodial sentence.
Indecent Assault Meaning
The definition of “Indecent” is defined as “contrary to the ordinary standards of respectable people in this community” and carries a sexual connotation or overtone. For example, an indecent assault could be inappropriate touching or fondling of the breasts.
A charge of indecent assault requires that the assault (or act thereafter) have a sexual connotation. This may derive from the area of the body to which the assault is directed, or from the assailant using an area of their body which would give rise to a sexual connotation. However, an assault on a particular area of a person’s body does not automatically mean that it is “indecent” for the purposes of this charge. The prosecution must prove that the act was done with the intention to obtain sexual gratification if it is not clear that a sexual connotation exists.
In addition, the “assault” and “act of indecency” do not have to be separate acts. The prosecution may rely on the same act as amounting to an assault and an act of indecency. The act of indecency does not need to be committed on the victim. It can be enough that the act of indecency is committed in the presence of the victim.
Although the section has been repealed, you could still be charged with this offence if the allegation occurred prior to December 2018.
What are the elements of indecent assault?
The prosecution must prove:
- The accused assaulted another person (the force used need not be violent, and can be as slight as a mere touch;
- The assault was intentional and without lawful justification
- The accused did so in indecent circumstances
- The accused was aware
- (a) that the person indecently assaulted was not consenting, s39(2)(a)
- (b) might not be consenting to the assault s39(2)(a), or
- (c)simply failed to give any consideration as to whether the complainant was consenting s39(2)(b), inadvertence. A charge of indecent assault requires that the assault (or act thereafter) have a sexual connotation. This may derive from the area of the body to which the assault is directed, or from the assailant using an area of their body which would give rise to a sexual connotation.
Indecent Assault NSW
From 1 December 2018, the charge of indecent assault has been replaced with Sexual touching. Accordingly, section 61KC Crimes Act 1900 provides;
Any person (“accused person” ) who, without the consent of another person (the “complainant” ) and knowing that the complainant does not consent intentionally–
(a) sexually touches the complainant, or
(b) incites the complainant to sexually touch the accused person, or
(c) incites a third person to sexually touch the complainant, or
(d) incites the complainant to sexually touch a third person,
is guilty of an offence.
The maximum penalty for this offence is full-time imprisonment for 5 years.
The maximum penalty when the matter is being dealt with in the Local Court is a term of 2 years imprisonment.
The maximum penalty, particularly when the matter is dealt with in the District Court, is reserved for the worst type of offender and offending conduct. The court has other penalties it can use instead of full-time imprisonment, such as a good behaviour bond, community service, conditional release orders or a suspended sentence.
Aggravated Indecent Assault
On 1 December 2018, the NSW offence of Aggravated Indecent Assault was replaced with Aggravated Sexual Touching. The meaning of sexual touching is found in section 61HB Crimes Act 1900. The meaning of “Circumstances of aggravation” is;
· the alleged offender is in the company of another person or persons, or
· the alleged victim is (whether generally or at the time of the commission of the offence) under the authority of the alleged offender, or
· the alleged victim has a serious physical disability, or
· the alleged victim has a cognitive impairment.
Available Defences for Indecent Assault NSW
The available defences to the offences of sexual touching or aggravated sexual touching are;
· The Sexual Touching was consensual;
· They had a reasonable belief that the sexual touching was consensual;
· The Sexual Touching was done for genuine medical or hygienic purposes
If you are facing indecent assault charges, you should speak to a criminal defence lawyer. We are a criminal law firm who have represented numerous clients in serious criminal law matters. You require a specialist criminal lawyer to represent you in such cases.
Indecent Assault Case Law
There was various case law regarding indecent assault before December 2018. They include;
- R v Mueller (2005) 62 NSWLR 476
- R v Bonora (1994) 35 NSWLR 7
- R v Burt (2003) 140 A Crim R 555
- R v Harkin (1989) 38 A Crim R 296
- R v AWL [2003] SASC 416
