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Indecency is an act that is offensive to public morals

This article tackles about the nature of the offence of Act of Indecency as defined and punished under the Crimes Act 1900.

Indecency is an act that is offensive to public morals, good taste, and proper conduct. It is an outrage against the morals of the community, a breach of public good, and a profanity of the established standard of public decency.

An indecent act is one which right minded persons would consider to be contrary to community standards of decency. The surrounding circumstances of the act may be considered by the court: Eades v Director of Public Prosecutions (NSW) [2010] NSWCA 241.

The offence of act of indecency is committed in two ways. Any person who commits an act of indecency with or towards a person under the age of 16 years, or incites a person under that age to an act of indecency with or towards that or another person, is liable to imprisonment for 2 years. (Section 61N Crimes Act 1900).

The punishable act does not only extend to actually committing an indecent act with or towards a person under the age of 16, the definition provided by the law includes the act of inciting a person under the specified age to commit an act of indecency also constitutes the offence of act of indecency. In one case, an 18 year old person was convicted of the offence of act of indecency for inciting a 13 year old girl to send a naked photo.

In determining whether the act constitutes an act of indecency, it is permissible that the surrounding circumstance on its commission should be taken in consideration. Thus, in R v McIntosh (NSWCCA, 26 September 1994, it states that:

  • “…establishes conclusively that, in determining whether an act which another person is incited by the defendant to perform is an act of indecency, it is permissible to take into account the surrounding circumstances, including the intent or purpose of the defendant and in the present case the ages of the defendant and the complainant and the sexual inferences that can be drawn from the text messages.”

It is then incumbent upon the court hearing the case to look, if there is any, into the circumstances surrounding the commission of the criminal act.

The Crimes Act 1900 governs the offence of act of indecency. The law categorizes the offence as offence against the persons.

The Defense

Generally, it is a defence in a criminal prosecution the lack or absence of any of the elements of the offence charged. Lack of criminal intent on the part of the accused in committing the offence charge may also be alleged by the accused in is defence.

It is important to allege in the complaint the age of the victim at the time when the offence was committed. This is because the imposable penalty of the offence varies depending on how the criminal act constituting the offence and the age of the victim at the time of the commission of the offence. Thus, the offender may defend himself by alleging that the age of the victim does not qualify to the requirement of the offence of act of indecency.

The Penalty

In all criminal prosecution, the burden of proof lies upon the prosecution, save are those instances where the burden of proof is shifted to the accused. The prosecution has to establish the guilt of the accused beyond reasonable doubt. If the prosecution is able deliver the standard of proof necessary, a judgment of conviction will surely be rendered. The court will then impose the penalty provided by law.

The penalty imposed upon the convicted person of the offence of act of indecency under the Crimes Act 1900 varies depending on the age of the victim. Thus, under Section61N(1) Any person who commits an act of indecency with or towards a person under the age of 16 years, or incites a person under that age to an act of indecency with or towards that or another person, is liable to imprisonment for 2 years. The penalty is different if the victim is 16 years old or above.

The law imposed only 18 months of imprisonment for the convict if he commits an act of indecency with or towards a person of such age, or incites that person to an act of indecency.

Disclaimer : This article is just a summary of the subject matter being discussed and should not be regarded as a comprehensive legal advice for you to defend yourself alone. If you are charged with criminal offences, it is recommended that you seek legal assistance from criminal lawyers.

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