The offence of Indecent Assault is described in s 61L of the Crimes Act 1900, as:
Any person who assaults another person and, at the time of, or immediately before or after, the assault, commits an act of indecency on or in the presence of the other person, is liable to imprisonment for 5 years.
Indecent Assault is a serious criminal offence. Indecent Assault is treated as a ‘sexual offence’ under the Criminal Records Act of 1991 which means that if you are convicted the conviction will remain on your criminal record for the rest of your life. Convictions for sexual offences are never spent. The implications of this are that if anytime in the future you are asked to produce a criminal record check by an employer or for other reasons the offence will be disclosed in the criminal record check.
You can be charged with the offence of Indecent Assault if you have been accused of unwanted deliberate physical contact with another person of a sexual nature. If the contact is not unequivocally of a sexual nature the police must prove that the conduct was accompanied by an intention to derive sexual satisfaction.
If the victim is over the age of 16 years the defence of ‘consent’ may be available depending on the circumstances of the indecent assault. The Police must prove that the complainant did not consent to the alleged indecent act. The Police must also prove that the accused did not know that the complainant was not consenting to the alleged indecent act, or that they were ‘reckless’ in regard to the lack of consent. In other words, the accused was aware of or uncertain of the lack of consent from the complainant but carried on with the sexual contact nonetheless.
Examples of sexual assault include:
- Intentional touching, clothed or unclothed, of breasts, anus, vagina or penis
- Unwanted kissing
- Intentionally rubbing your groin up against someone
- Unwanted physical contact of any kind
To be convicted of this offence the Police must prove that all of the essential elements of the offence were present. The police must prove that:
- the assault occurred
- the assault was indecent
- the assault was without the consent of the complainant
- the accused knew that the complainant was not consenting
- the accused was ‘reckless’ and went ahead with the assault even if they were not sure whether the complainant was consenting or not
William Vahl of North Shore Criminal Law is the only Accredited Criminal Law Specialist on Sydney’s North Shore.
He has over 20 years experience defending people who have been charged with sexual offences such as Indecent Assault.
Talk to us before you talk to the police. Call (02) 9955 2298 or 0400 4464 24 (24 hour emergency service).