Indecent assault charges and the circumstances where one may be charged can vary. There are gradations in the level of seriousness, however, one always faces the prospect of severe penalties if found guilty of this type of charge, particularly if charged with the more serious version, being aggravated indecent assault. When charging someone with indecent assault NSW Police have to take into account whether there may be aggravated factors that make the offence more serious.
An assault that has the additional element of the offender committing an act of indecency upon or in the presence of the victim is referred to as indecent assault.
Pursuant to section 61L of the Crimes Act 1900, 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, has committed the offence of indecent assault.
The maximum penalty upon conviction for the charge of indecent assault is a term of imprisonment of 5 years. (Read more on the charge and penalties for aggravated indecent assault.)
The maximum penalty when the matter is being dealt with in the Local Court is a term of imprisonment of 2 years.
It must be noted that 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. Further, the Court still has available to it alternative penalties to full time imprisonment, such as a good behaviour bond, community service and a suspended gaol sentence.
The essential ingredients that are required to prove a charge of indecent assault are:
1. That the accused person assaulted the victim,
2. That the assault was indecent, (or, that immediately before or after the assault the accused person committed an act of indecency on/in the presence of the victim,
3. That the assault was without the consent of the victim,
4. That the accused person knew that the victim was not consenting, (or, that the accused person was reckless as to consent)
What is the meaning of "assault"?
An assault can be committed in one of two ways - by way of physical contact or by placing the victim in fear.
To be an assault by way of physical contact, it is enough that the contact is intentional, unwanted and uninvited. The physical contact does not have to be with any particular force and does not need to be in anger or with the intention of hurting the other.
The other form of assault is where there is not physical contact, but the accused person has placed the victim in fear of imminent personal violence.
An example and further explanation of the two forms of assault can be read in our article on common assault.
What is the meaning of "indecent"?
In essence, a charge of indecent assault requires that the assault (or act thereafter) must have a sexual connotation. The sexual connotation may derive directly from the area of the body of the person to which the assault is directed, or it may arise because the assailant uses the area of his or her body which would give rise to a sexual connotation in the carrying out of the assaults (Harkin (1989)). However, just because an assault is carried out on a particular area of a person, it does not automatically mean that it is "indecent" for the purposes of this charge.
Where it is not clear that a sexual connotation exists, the prosecution must prove that the act was done with the intention to obtain sexual gratification.
It must also be noted that the "assault" and "act of indecency" do not have to be separate acts. The prosecution can also rely on the same act as amounting to an assault and an act of indecency.
In addition to the above, the act of indecency does not necessarily need to be committed on the victim and it can be enough (as long as there is also an assault proved) that the act of indecency is committed in the presence of the victim.
The issue of "consent"
The prosecution must prove that the victim did not consent to the assault or being touched in a particular way and that the accused person knew the victim was not, or was reckless as to whether the victim was, consenting.
It is to be noted that consent is not a defence to an indecent assault charge when the victim is a child under 16 years.
The above is only a brief outline of the main concepts that relate to indecent assault charges. The criminal law relating to sexual offences is complex and the ramifications of a conviction for this type of offence can be severe; so it is important to obtain competent legal advice and representation when facing this sort of charge. Importantly, when facing the prospect of being charged with an indecent assault offence or other sexual offence, immediate advice from a competent criminal lawyer should be obtained before speaking to police or any other witness or person about the allegations.
If you have been charged with indecent assault (NSW) and require legal assistance, our experts at Prime Lawyers - Criminal Division can help. Contact us to obtain confidential legal advice from a criminal lawyer at your nearest Prime Lawyers office.
We have offices in the Sydney CBD, Parramatta, Chatswood, Sutherland and Wollongong.