What is indecent Assault?
Indecent assault is an assault against another person that has occurred in indecent circumstances, where it is established, that the accused person was aware or did not give any thought to the fact, that there was a lack of consent. Indecent assault was a sexual offence in Victoria under section 39 of the Crimes Act 1958 from the 1st of January 1992 and was repealed as of 1 July 2015 and has now been replaced by section 40 of the Crimes Act 1958 (Sexual Touching).
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. If the conduct is very old then it is also possible that you have been charged under the previous sections being s55, s44 or s42 of the Crime Act. If you scroll to the bottom of this article you can see the legislative history in more detail.
As the charge of indecent assault has now been repealed the charge will always be considered a historical sex offence.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.
Indecent assault as covered by section 39 of the Crimes Act 1958 (Vic) (repealed in June of 2015).
Section 39 states:
(1) A person must not commit indecent assault.
Penalty: Level 5 imprisonment (10 years maximum).
(2) A person commits indecent assault if he or she assaults another person in indecent circumstances –
(a) while being aware that the person is not or might not be consenting; or
(b) while not giving any thought to whether the person is not consenting or might not be consenting.
For some examples of real case studies handled by our firm 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.
What is the likely penalty / sentence in relation to indecent assault?
It is one thing to understand what is the maximum penalty in relation to an indecent assault charge but it is another thing to understand what sentence or penalty might be imposed by the court when pleading guilty to this charge.
Unfortunately there is no simple answer to this question. Given that this charge is often very old, different sentencing regimes can and often do apply, as an example, if the offence date predates 2013, then a suspended sentence would be open to the court.
The truth is that we have handled cases where clients have received as little as a diversion, bond or fine or as much as multiple years in prison, so to answer the question, all sentencing options are open depending on the level of seriousness.
If you are facing this charge and would like to better understand what sentence you might face you should call the office to arrange a consultation.
Where will my case be heard?
- Indecent Assault cases can be heard in the Magistrates’ Court of Victoria but are often heard in the County Court and run through what is known in Victoria as the committal stream, depending on the level of seriousness.
The element of 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 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  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 ).
What amounts to indecency?
The term “indecency” cannot be exhaustively defined. 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)  NSWCA 241 at  per Campbell JA).
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 (although intent is not an element the prosecution must prove in relation to indecency but it will from part of the factual matrix that allows the jury or judicial member to form a view objectively about whether the assault is in fact indecent).
Case analysis in relation to Indecent Assault
R v Court  AC 28
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”. This had the potential to make an act that ordinarily might be considered an assault, an indecent assault.
It was held that where facts show that an act may be either indecent or not, 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, allowing the judiciary to find that on an objective standard the accused had assaulted the child indecently.
Sabet v R  VSCA 124
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.
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 from the kissing incident. 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.
It is important to note that the penalty for indecent assault can be 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 and remembering every case is different, pleading guilty to certain charges may be a better option than contesting them in Court. A plea of guilty may be entered leading to 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  VSCA 48
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.
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 a 14 year prison sentence 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 as noted by the court.
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 an expert.
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. 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.
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.
What to do next?
Make contact. There are a number of defences to the charge of indecent assault. In most circumstances the evidence will be word on word. The outcome of a matter will largely depend on a carefully considered defence.
An experienced criminal defence lawyer can help.
If you have been charged with indecent assault or any other sexual offence, it is important that you contact Dribbin & Brown Criminal Lawyers.
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.
Don’t delay as thorough preparation is essential in ensuring a successful outcome to any criminal matter. Call us today to make an appointment at one of our many 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.