Act of Indecency charges are a serious offence, if you have been charged with an act of indecency you will need expert legal representation. George Sten & Co comprise a team of specialist criminal defence lawyers with over 50 years of experience in defending persons charged with crimes including indecent assault. If you have been charged with an Act of Indecency or Indecent Assault, George Sten & Co maintain the expertise required to defend you to the highest possible standard.
Act of Indecency – Indecent Assault
Section 61L Crimes Act 1900 (NSW)
Under Section 61L of the Crimes Act 1900 (NSW) a particular offence is established for committing an act of indecency on or in the presence of another person who has been assaulted. An example of such an act may include causing a victim to believe they may be harmed or injured unless they comply with an accused's demands and the accused then touches the victim on their breasts, bottom or genitals. It is irrelevant whether a victim is male or female.
To establish that an indecent assault has occurred the Crown must prove a number of elements which make up the offence. Firstly the Crown must prove that the accused assaulted the complainant. An assault may be defined as the 'deliberate and unlawful touching of another person'. An assault does not need to be a violent physical act, or hostile or aggressive in this regard. An assault may occur with the slightest touch.
If there is no physical act, an assault may have been committed where the accused made 'an unlawful threat which caused the complainant to fear immediate and unlawful violence at the hands of the accused and where the accused intended that the complainant would apprehend such fear as a result of the threat(s)'.
Secondly, the Crown must prove beyond reasonable doubt that the assault was indecent. The word 'indecent' in this context means “contrary to the ordinary standards of respectable people in this community”. It is up to a magistrate or judge to decide the standards prevailing in the community when determining whether the crown has satisfied that the act alleged in a case was indecent.
Indecent requires a sexual connotation to the act. If the accused touches the complainant's body or uses his or her own body to touch the complainant in a manner which gives rise to a sexual connotation, that is sufficient to establish the assault was indecent. Examples include touching the genitals, anus or breast of any person.
If it is not proved the assault carries a sexual connotation, the Crown must establish, for indecent assault to be proved, that the accused's conduct was committed with the intention to obtain sexual gratification.
It is not necessary for the Crown to establish two separate acts, one of assault and one of indecency. The Crown may rely on a single act as amounting to both assault and an act of indecency. The Crown may still however establish two separate acts, though the act of indecency must have occurred within a very brief period of time before or after the assault.
For the act to be unlawful and therefore amount to an assault, the Crown must prove that the accused touched the complainant without his or her consent and with the knowledge that he or she was not consenting. 'Consent' in this context involves the conscious and voluntary permission by the complainant to the accused to touch the complainant's body in the manner that the accused did. Consent or lack of consent can be communicated by the words or acts of the complainant.
Therefore the Crown must prove the complainant was not consenting to the accused's act.
Further, the Crown must also prove that the accused knew the complainant was not consenting to the act in question. If the complainant is under 16 years, the accused may not rely on consent.
In considering this element, a judge looks exclusively at what was happening in the mind of the accused, rather than what a reasonable person might have thought or believed or what anyone else might have thought or believed. If the accused actually, though wrongly, believed the complainant was consenting, then he or she is not guilty.
If it is alleged that the accused was intoxicated at the time of the act in question (assuming the intoxication is self-induced), the law requires that any effects of intoxication are ignored by a judge or jury. If the accused's intoxication is not self-induced, this will be relevant for consideration.
In brief, the Crown must prove the above mentioned essential ingredients to establish the offence of indecent assault, namely:
- That the accused assaulted the complainant and the assault was indecent,
- that the assault was without the consent of the complainant and
- (Briefly) that the accused knew the complainant was not consenting.
If the Crown does not prove each of these elements beyond a reasonable doubt then an accused person may be found innocent of indecent assault.
Indecent assault is a very serious offence and a person charged with this offence requires expert legal representation to ensure the best outcome is achieved.
In New South Wales the Crimes Act provides for a range of offences which involve an assault of some kind. If you have been charged with an indecent assault offence, it is crucial that you seek urgent legal advice. For specialised assault lawyers, contact George Sten & Co Criminal Lawyers.
We are available 24 hours a day, 7 days a week and can be contacted on (02) 9261 8640 during business hours or 0412 423 569 outside of business hours. We may also be contacted via email at email@example.com.