What is indecent Assault?
Indecent assault is an assault that has occurred in indecent circumstances. It was a sexual offence in Victoria under section 39 of the Crimes Act 1958 from the 1st of January 1991 and was repealed on the 29th of June 2015 and replaced by section 40 of the Crimes Act 1958.
If you have been charged with an indecent assault under section 39 it means that the conduct will be alleged to have occurred between the 1st of January 1992 and the 29th of June 2015. As the section has now been repealed the charge of indecent assault will always relate to a historical sex offence. Our firm has handled hundreds of cases involving indecent assault, if you have been charged or about to be interviewed you should call our office today for specialist sex offence advice.
For some examples of real case studies follow the links:
- Indecent Assault and Indecent Act case study
- 3 x charges of indecent assault of a person under 16
- Student indecent assault charges
- Indecent assault & Rape
- Indecent assault security installer
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 (Collins v Wilcock 1 WLR 1172)
- 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.
The maximum penalty
Level 5 imprisonment being a maximum of 10 years.
Where will my case be heard?
Indecent Assault cases will usually be heard in the Magistrates’ Court of Victoria but could be uplifted to the County Court or what is known in Victoria as the committal stream depending on the level of seriousness.
Questions to consider in relation to your case
Are you disputing the evidence?
- In relation to dated sexual offending, it is often the case that the charge will be based on the word of the complainant alone. In these circumstances the case can be easily defended if you are disputing the evidence and have made denials or a no comment interview. The key to winning these cases is always preparation as the complainant will often misrepresent a number of the key facts that will go to their credibility. See here for pleading not guilty in relation to a sex offence.
On the face of the evidence are the elements made out?
- Sometimes the prosecution get it wrong in terms of whether the charge is made out. This is why it is so important that an experienced sex offence lawyer analyses the brief.
Have the prosecution got the time frames wrong?
- If so, different considerations may apply to the charge.
If you are intent on accepting responsibility and pleading guilty, what can you do to minimise your sentence?
- Your defence lawyer can negotiate with the prosecution to reduce the charges and also narrow the facts relied upon by the prosecution to be more favourable.
- Your lawyer can also assist in the preparation of plea material that will mitigate sentence.
Other things to consider:
In relation to very old indecent assaults alleged to have occurred prior to the 1st of January 1992, it is important to consider the type of offending that is captured by the charge, as the definition of sexual penetration has changed a great deal since 1958 when the Crimes Act was first introduced.
- Prior to 1 March of 1981 sexual penetration in relation to rape only included penetration of the vagina with the penis. A rape could not occur by way of digital penetration of the vagina or penile penetration of the mouth or the anus. This conduct was charged as an indecent assault as it was legislated at the time, not a rape. This form of indecent assault is obviously treated very seriously by the judiciary notwithstanding a lesser maximum sentence applies.
- After 1981 and until 1991, the definition of rape was widened to include oral penetration by the penis, penile penetration of the anus and penetration of the vagina or anus with an object other than another body part. This reduced the amount of conduct captured by indecent assault.
- After 1991, the definition of rape was widened again to include penetration of the vagina or anus with a body part. This definition now included digital penetration which prior to 1992 was covered by indecent assault.
- If you have been charged with penetrative acts prior to 1992, but are facing indecent assault charges, the above information should explain why you have been charged with indecent assault and not rape. This is important because indecent assault carries a greatly reduced maximum sentence when compared to rape but also makes it a very serious example of the offence.
What to do next?
As you can see from the above article, the law in relation to indecent assault is not straight forward. The legislative landscape has changed over time.
If you have been charged with indecent assault consult an experienced criminal lawyer. Don’t delay as thorough preparation is essential in ensuring a successful outcome to any criminal matter. Call Dribbin & Brown Criminal Lawyers today to make an appointment at one of our 7 offices located around Victoria.
For more information on the legislative changes in relation to Indecent Assault in Victoria follow the links to the relevant legislation that existed at the time.
55.(1) Whosoever unlawfully and indecently assaults any woman or girl, shall be guilty of a misdemeanour, and shall be liable to imprisonment for a term of not more than three years.
(2) It shall be no defence to a charge for an indecent assault on a girl under the age of sixteen years(a) that such assault was made with the consent of such girl.
(3) Whosoever having been convicted of such misdemeanour as in this section mentioned afterwards commits such misdemeanour as in this section mentioned, shall be guilty of felony, and shall be liable to imprisonment for a term of not more than ten years.
44. (1) A person who indecently assaults another person is guilty, of an indictable offence and liable to imprisonment for a term of not more than five years.
(2) A person who indecently assaults another person is, if there are aggravating circumstances, guilty of the indictable offence of indecent assault with aggravating circumstances and liable to imprisonment for a term of not more than ten years.
(3) Where a person is charged with an indecent assault, whether sixteen, with or without aggravating circumstances, committed upon a person under the age of sixteen years, the consent of the person under sixteen is no defence to the charge unless, at the time the offence is alleged to have been committed-
(a) the accused was, or believed on reasonable grounds that he was, married to the person;
(b) the accused believed on reasonable grounds that the person was of or above the age of sixteen years; or
(c) the accused was not more than two years older than the person.
42. Indecent assault
A person must not indecently assault another person.
Penalty: Imprisonment for 5 years.
S. 43 Indecent assault with aggravating circumstances
A person who indecently assaults another person is, if there are aggravating circumstances, guilty of the indictable offence of indecent assault with aggravating circumstances and liable to imprisonment for a term not exceeding 10 years.
39. Indecent assault
(1) A person must not commit indecent assault.
Penalty: Level 5 imprisonment.
(2) A person commits indecent assault if he or she assaults another person in indecent circumstances while being aware that the person is not consenting or might not be consenting.