This provision of law can be dissected into five main elements which the prosecution must prove to exist to obtain a conviction of the accused.
The elements are:
1. An assault was committed;
2. An act of indecency was committed;
3. The act of indecency was committed at the time of, or immediately before or after the assault;
4. The assault was without the consent of the offended party; and
5. The accused has knowledge that there was no consent to the assault.
The prosecution has the burden of proving the existence of all five elements whereas the accused has the right to be presumed innocent until proven guilty.
An assault is the deliberate unlawful contact with another person. There is, therefore, the intent to unlawfully touch another person. The commission of an assault includes both physical and verbal acts as it is sufficient that a person feels threatened and afraid.
The second and third elements can be discussed jointly. To be able to convict someone for indecent assault the indecent act must be committed at the time of, or immediately before or after the assault. For an assault to be indecent, the act of assault must have a sexual undertone.
The absence of a sexual connotation in the assault will remove it from the coverage of the crime of indecent assault. If a period of time lapsed from the assault to the indecent act then no indecent assault was committed by the accused and he should be acquitted.
The fourth and fifth elements pertain to the lack of consent of the complainant and the knowledge by the accused that there was no consent. Since the crime of indecent assault has a sexual connotation, consent is an integral element.
All these five elements must be proved by the prosecution. The job of the defence is to raise doubts by showing that any or all of these elements are absent in the case.