Trigger Warning: This article contains content on sexual assault. The reader may stop reading at any time if they feel uncomfortable at any part of the article. JB Solicitors intends to provide information on this article for legal information purposes only.
Indecent assault is a type of sexual assault that involves unwanted touching or fondling of intimate parts of a body. Consent is an important concept in sexual acts. This is the act of voluntarily agreeing to engage in a particular action or behaviour. In the context of sexual activity, it is the agreement by all parties involved to engage in sexual activity freely and voluntarily.
The charge may be decided in District Court before a judge and a jury, depending on the gravity of the allegations. What is the maximum penalty for indecent assault? If the District Court deals with the matter, it may send indecent assault offenders to prison for five years. On the other hand, the Magistrates COurt may imprison the same offender for two years.
The charge may be decided in District Court before a judge and a jury, depending on the gravity of the allegations. The court will consider indecent assault as “aggravated indecent assault” if the victim was under the age of 14. Read on to find out more about an indecent assault in criminal law matters.
What Does the Crimes Act 1900 NSW Say?
In 2018, the Crimes Act 1900 made reforms to sexual offences in which it replaced ‘indecent assault’ with ‘sexual touching’. Sexual touching includes a wide range of non-penetrative sexual acts. In fact, Section 61KC of the Crimes Act states that a person is guilty of sexual touching if, without consent:
- Sexually touches the alleged victim
- Incites the alleged victim to sexually touch the alleged offender
- Incites a third person to sexually touch the alleged victim
- Incites the alleged victim to sexually touch a third person
Section 61KD of the Act defines aggravated sexual touching as circumstances in which the:
- Alleged offender is in the company of another person or persons
- Alleged victim is under the authority of the alleged offender (Whether generally or at the time of the commission of the offence)
- Victim has a serious physical disability or cognitive impairment
Possible Defences To An Indecent Assault Charge
1. Consent: The accused person would not be in violation of the law if the alleged victim agreed to the sexual contact or behaviour.
2. Mistaken identity: If they can demonstrate that they did not commit the assault, the court will not find them guilty.
3. False accusation: The court will not find them guilty if they can show that someone made the accusation in error.
4. Inadequate evidence: If the prosecution lacks sufficient evidence to prove guilt beyond a reasonable doubt, the accused is not guilty.
5. Alibi: If the accused can demonstrate that they were not present at the scene of the alleged crime at the time it occurred, they will be found not guilty.
Proving Indecent Assault
1. Unwanted sexual contact or behaviour: The prosecution must prove that the accused engaged in unwanted sexual contact or behaviour, which includes any touching of an intimate part of the body, or any sexual connotation that causes alarm or distress.
2. Lack of consent: The prosecution must prove that the alleged victim did not consent to the sexual contact or behaviour. A person does not consent to any form of activity even if they say “I don’t know/I’m not sure” or anything similar.
3. Criminal intent: The prosecution must prove that the accused acted with the intent to commit the indecent assault, meaning that they knew that their actions were wrong and that the victim did not consent.
4. Evidence: The prosecution must present evidence that supports their case, such as witness testimony, physical evidence (e.g. DNA, injury), or other forms of indecent circumstances.
Case Example
In the case of Zobair v Miller [2017], the appellant (Zobair) pleaded guilty of indecent assault. Zobair claimed that he pleaded guilty based on advice from the prosecutor in his appeal. The appellant argued in his appeal that his behaviour was not “indecent” as a matter of law. The facts of the case are as follows.
Facts of the Case
The accused was having a conversation with a victim and her friends outside the accommodation unit of a village mine site around midnight. He stayed until about 1.30 a.m., speaking with the victim and her friends. The accused offered to return and wake her at 4 a.m. to get her ready for her shift. He had knocked on the victim’s door at 4 a.m. that morning.
She was already awake and getting ready to go to work. She was still in her pyjamas. The victim thanked the accused before walking into the unit and settling into a chair. The accused then stood up and stated that he wished to ask a question. The victim said to ask the question and just leave.
However, the accused took both of the victim’s hands in his and told her that he had feelings for her. His actions made her uncomfortable. She drew her hands away from him and asked him to leave. He refused to leave and demanded an answer to his question from her. She then informed the accused that she had a partner and was not looking for a relationship.
The accused then asked for a cuddle, and before the victim could respond, he wrapped his arms around her and hugged her. He then proceeded to kiss her on the neck once. She pushed him away with both hands, telling the accused to leave and that her coworker would be there soon to pick her up. He then left, and the victim filed a complaint to her supervisor.
The Appeal
Zobair argued that he did not establish indecency since he told the complainant he had feelings for her. He also argued that he was hugging and kissing her on the neck after she told him she had a partner and was not interested. A court could rule that the act of kissing the victim on the neck constituted a sexual assault.
This act was impolite or offensive to common decency. The court concluded that the appellant’s actions of hugging and kissing the complainant constituted an assault because there appeared to be no consent to the hugging and kissing.
Court Conclusion
According to the court, if the act of kissing the complainant on the neck was not done for sexual gratification, it could not be considered indecent. However, the issue for the court was whether the conduct complained of was capable of constituting an “indecent assault”.
On the facts read to the Magistrates Court, it is unclear whether the complainant moved her body when the appellant went to kiss her. When all of these factors are considered, the appellant’s behaviour may or may not be considered indecent. Hence, the following orders were made:
- The deadline for filing an appeal notice has been extended to May 25, 2017.
- The application for leave to adduce additional evidence on appeal, namely the appellant’s affidavit sworn on April 28, 2017, is granted.
- Leave to appeal has been granted.
- The appeal has been granted.
- Set aside Zobair’s conviction, a fine of $450.00, costs of $168.90, and costs of 20 cents.
- The case has been referred to the Magistrates Court of Western Australia in Perth.
Importance of Seeking Confidential Legal Advice
JB Solicitors is a law firm that defends innocent clients who were wrongly charged with indecent assault matters. Our lawyers can also defend victims of indecent sexual acts and bring offenders to justice.
We have experience of helping clients navigate the court system and gather credible evidence. We can aid in exploring plea options for those who the court finds guilty.
Contact us today for all your criminal law matters.
