Elements of indecent assault

According to Section 61L of the Crimes Act 1900, a person who assaults another person and during, or immediately before or after the assault commits an indecent act on the person assaulted or in the presence of the person assaulted is liable to five years imprisonment.

The prosecution and the police must prove the existence of the following essential elements beyond reasonable doubt to attain a conviction for indecent assault:

• An assault was committed on the complainant;
• The assault committed was indecent in nature;
• Lack of consent on the part of the complainant;
• The accused knew that the complainant does not consent.

 Examples of indecent assault

• Unwanted/unsolicited kiss or touching
• Inappropriate but intentional touching, rubbing against the complainant’s genitals, groin, breasts;
• Fondling of breasts, buttocks or genitalia.

Proving indecent assault

Since in a criminal case the accused enjoys a presumption of innocence it is the burden of the prosecution, police and complainant to prove the guilt of the accused beyond reasonable doubt.

The assault committed by the accused must be of a sexual nature. It is not a hostile or aggressive act such that would cause the complainant to be afraid or feel threatened. Thus, penetration is not required for an indecent assault prosecution. Even the most minimal of touching or fondling will be considered as indecent assault if the act was deliberately committed and has sexual undertones.

The test of indecency of the act committed is if it is offensive to the community standards of decency. In determining whether the act was indecent all the attendant circumstances will be taken into account including the relationship between the parties, if any, and their ages.  

The lack of consent makes an otherwise normal act become unacceptable. Consent is the permission voluntarily and knowingly given by the complainant to the act intended to be committed by the accused. The complainant must know beforehand the sexual nature of the act the accused wants to commit and that he/she consents to the same.

Clearly, existence of consent would exonerate the accused from an indecent assault prosecution. The prosecution must prove that at the time of the commission of the act the accused knew that the complainant does not consent.

This element might be difficult to prove because this concerns a mental element that the accused will not be willing to divulge. However, the surrounding circumstances will show if the accused took into consideration whether the complainant was consenting to the act or not.

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.