Indecent assault – Case Study Sex Offence Lawyers Melbourne

by Dribbin & Brown Criminal Lawyers

Introduction

Indecent assault is covered by section 39 of the Crimes Act 1958 (Vic).

Section 39 states: 

  • A person must not commit indecent assault.

Penalty: Level 5 imprisonment (10 years maximum).

  • A person commits indecent assault if he or she assaults another person in indecent circumstances –
    • while being aware that the person is not or might not be consenting; or
    • while not giving any thought to whether the person is not consenting or might not be consenting.

Assault is defined in s 31(2) and (3) of the Crimes Act 1958:

(2) In sub-section (1), ''assault" means the direct or indirect application of force by a person to the body of, or to clothing worn by, another person where the application of force is –

(a)   without lawful excuse; and

(b)   with intent to inflict or being reckless as to the infliction of bodily injury, pain, discomfort, damage, insult or deprivation of liberty -

and results in the infliction of any such consequence (whether or not the consequence inflicted is the consequence intended or foreseen).? 

  • In sub-section (2) – “application of force" includes –
    • application of heat, light, electric current or any other form of energy; and?
    • application of matter in solid, liquid or gaseous form.

For the offence to amount to “indecent assault”, it must take place in “indecent circumstances”. Applied objectively, the Courts have often held the view that the question of indecency is to be determined according to “right-thinking members of the community” (see R v Manson, unreported, NSW CCA, 17 Feb 1993), and judged according to “community standards of decency” (see Eades v DPP (NSW) [2010] NSWCA 241 at [40] per Campbell JA).

Assault

There need not be an assault as well as an act of indecency. It is enough that the assault, in itself, is an indecent act (Fitzgerald v Kennard (1995) 84 A Crim R 333).

Assault generally involves the application of force. This is because the legal term “assault” combines the traditional term “battery” (being actual unlawful, physical contact) with the word “assault” (being the immediate threat or fear of unlawful contact). An assault can therefore occur without the accused ever touching the victim.

For the assault to be indecent in this case, the accused must have intentionally put the victim in fear of immediate physical contact of an indecent kind. Thus, as described in R v Court, if the accused requests the victim to indecently touch him or her, and the victim does not fear an immediate application of force against himself or herself, no assault is considered to have taken place.

If there is an application of force (physical contact), such as touching or fondling or other bodily contact, this in itself will constitute an assault, provided it is in indecent circumstances (R v Doyle [1957] SASR 182 at 184). Under section 39, there is no requirement that the force must be aggressive or hostile in any way, and any contact however slight, if made in indecent circumstances and without the other person’s consent, will be an indecent assault (see Bellemore v Tasmania (2006) 170 A Crim R 1 at [226]).    

Case Studies

The term “indecency” cannot be exhaustively defined. Not only can different forms of physical contact occur, but the evolving nature of science and technology means that indecent assaults are now capable of occurring in many different non-physical ways, such as through internet chat rooms, picture messaging, and telephone calls. Such a huge variety cannot be adequately investigated, and the question of whether indecent assault via a web-based medium is actionable is a large area of study on its own.

The following cases focus on the fine line between indecent assault and acceptable physical and non-physical interaction. By investigating the often blurred distinction between indecent and non-indecent assault, we can see that even the most subtle and innocuous of acts can constitute indecent assault if performed with indecent intent.

R v Court [1989] AC 28

The Facts

The accused struck a 12 year-old girl around 12 times on the buttocks for no apparent reason. When questioned by police as to why he had done this, the man replied, “I don’t know, buttock fetish”. His defence argued that the statement should be excluded as a secret, uncommunicated motive and could not make indecent an assault which is not overtly indecent.

Court Decision

It was held that where facts show that an act may be either indecent or not indecent, the prosecution must prove not only that the accused intentionally assaulted the victim, but that in doing so, he intended to commit an assault which right-minded persons would think was indecent. The statement made by the accused was therefore admissible, and he was found guilty of indecent assault, showing that he had struck the child with indecent intent.

The decision stands as principle that an assault is indecent only if performed with indecent intent, and that statements of intention given to the police can be used in Court. Some statements may not be admissible, however, and it is crucial that you consult a professional legal practitioner to question the admissibility of any statements you may have made to police.  

Sabet v R [2011] VSCA 124

The Facts

The accused was a medical doctor. The victim alleged that the doctor performed physical examinations on her in indecent circumstances. The victim alleged that after the examination was completed, the doctor put his hand on her back and gave her a kiss on the cheek, something which “really shocked her”. This made her feel very uncomfortable, and she later stated she was uncomfortable during the entire examination.

The question posed to the Court was whether the doctor had indecently assaulted the victim with a combination of the exam and the kiss, or whether the kiss might of itself have constituted the only indecent assault, and not the remainder of the exam.

Court Decision

It was held that there was nothing in the kiss which could be conceived as having any sexual connotation deriving either from the manner of the kiss itself or any other touching of the victim’s body by the accused.

While there were allegations of sexual assault regarding the medical procedures, they did not flow directly to the kissing incident in this case. It was held that the two actions were separate, and the kiss could not of itself render the rest of the procedure indecent.

The case highlights that any charge of indecent assault must be carefully examined, as it is often one person’s interpretation of an incident against another’s. Here, the victim felt violated by the kiss, while the accused believed it was a harmless action.

If you have been charged with indecent assault, the prosecution must show beyond reasonable doubt that you engaged in conduct in an indecent matter. This is judged objectively, so it will often be judged according to normal community standards. An experienced criminal lawyer may be able to show the Court that your actions should not be deemed “indecent” and you may be able to avoid serious penalties.  

Penalties

It is important to note that the penalty for indecent assault is severe. If found guilty, the convicted person may be liable to 10 years imprisonment, along with fines, a criminal record and being named on a sex offenders’ register. All of this can have serious impact on future employment prospects. Further, a person who has been charged with multiple counts of indecent assault could face consecutive sentences, meaning prison time could extend well beyond 10 years.

In some circumstances, pleading guilty to certain charges may be a better option than contesting them in Court. A plea may be entered into for a reduced sentence. In this situation, it is important that you enlist the help of an expert criminal defence lawyer to give you the best possible chance of a significant reduction in your penalty.

R v AMP [2010] VSCA 48

The Facts

In this case, the accused pleaded guilty to 20 counts of indecent assault spanning a period of 50 years. The assaults had occurred on multiple victims who were particularly vulnerable at the time, being orphaned children.

Court Decision

Multiple offences committed by the applicant carried with them penalties of 10 years imprisonment. The applicant was also convicted on a charge of incest, which carries a 25 year prison sentence. A plea of guilty was entered into by the accused, and the penalty was reduced to 14 years in prison with a non-parole period of 9 years. Had the accused not pleaded guilty, the alternative would have been a prison sentence of 18 years.

This decision shows that entering a plea of guilty may be able to significantly reduce a prison sentence, in this case by nearly 25% of the total incarceration time.

If you have been charged with indecent assault, it is critical that you consult a professional criminal lawyer immediately. It could mean the difference between serving concurrent prison sentences (where you serve the same time for multiple crimes) or consecutive sentences (where each charge is sentenced separately with each sentence adding on to the next, resulting in a much lengthier sentence).

Contact

There are defences to charges of indecent assault. In most circumstances, it is one person’s word against another’s. The outcome of a matter will largely depend on evidence, witness statements and police reports.

An experienced criminal lawyer can help you build a case based on all of these factors. Where prosecution evidence is unfounded or circumstantial, it may be held to be inadmissible on your lawyer’s recommendation.

If you have been charged with indecent assault or any other sexual offence, it is important that you contact a legal professional immediately. They will be able to offer you legal advice and make recommendations as to what you should do next, and what you might expect in your matter. Do not hesitate to contact one of our experienced criminal defence lawyers today.



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