Section 39 of the Crimes Act 1958 (Vic) (“the Act”) prohibits indecent assault. You commit indecent assault if you assault another person in indecent circumstances. You must be aware that the person is not consenting or might not be consenting. Or you did not give any thought to whether the person is not consenting or might not be consenting.
Indecent assault covers sexual acts other than sexual penetration (which is rape).
- Meaning of indecent assault
- What are the questions a jury will consider
- Maximum penalty
- Sentencing in the Magistrates Court
- Sentencing in the County Court
- Case examples
Will the charge be heard in the Magistrates’ Court or the County Court?
Indecent assault can be heard by a judge and jury in the County Court or by a Magistrate in the Magistrates’ Court if the Magistrates’ Court considers it appropriate and the accused consents. In making this determination, the Magistrate will consider the seriousness of the charge, the adequacy of sentences available to the court (the maximum term of imprisonment that a Magistrate can impose for a single offence is two years imprisonment and the maximum aggregate (total) sentence that a Magistrate can impose is five years imprisonment), whether a co-accused is charged with the same offence, as well as any other matters the court considers relevant.
The prosecution must prove each of the following five elements beyond a reasonable doubt in order for an accused person to be found guilty:
- The accused assaulted another person;
- Without lawful justification;
- In indecent circumstances;
- While being aware that the person is not consenting or might not be consenting or while not giving any thought to whether the person is not consenting or might not be consenting.
Element 1: The accused assaulted another person
The first element that the prosecution must prove is that the accused assaulted another person.
The prosecution is required to prove all the elements of common assault. Common assault is the creation of an apprehension of an imminent or immediate application of force to another person without their consent, or the actual application of force to another person without their consent.
The actual application of unlawful force, however slight, may be an assault, but inactivity cannot constitute assault. In Fairclough v Whipp (1951) 35 Cr App R 138, the accused was urinating when a 9 year old girl passed by. The accused invited the girl to ‘touch it’ and she did so. It was held that the accused’s invitation to the girl to touch him could not amount to an assault. However, in such a case the accused would presumably be liable to prosecution for committing an indecent act with a child under the age of 16.
Element 2: Intentionally
It is unclear in Victoria whether the prosecution merely needs to prove an intention to assault, or whether the prosecution needs to prove that there was an intention to commit an indecent assault. The wording of s 39(2) of the Act states that a person commits an indecent assault if they ‘assault another person in indecent circumstances’ which seems to indicate that there need only be an intention to assault, as long as the assault occurred in indecent circumstances. However, the prosecution does not have to prove that there was some ‘hostility’ over or above the actual circumstances of indecency and contact between two persons as it might in common assault or battery.
In any event, the prosecution must prove that the accused intended to perform the act.
Element 3: Without lawful justification
Consent is the most commonly used justification for indecent touching. Other potential lawful justifications include that the touching was in the course of an ordinary social activity or that the accused was lawfully correcting a child.
Element 4: In indecent circumstances
It is not necessary that the acts constituting the assault itself be indecent. The prosecution only has to show that the act itself occurred in indecent circumstances.
The test of indecency has been variously stated as whether the behaviour was unbecoming or offensive to common propriety, an affront to modesty, or an act which right-minded persons would consider to be contrary to community standards of decency. The test of indecency has remained broad because ‘indecent acts are as various as the human imagination’.
In R v Harkin (1989) 38 A Crim R 296 the court found that there needs to be a sexual connotation for an act to be indecent. However even where no objective sexual connotation arises from the act, if the offender’s purpose was sexual gratification, his or her intent may give the act the quality of indecency if the act accompanied by that intent offends community standards.
In Curtis v The Queen  VSCA 102 the accused had urged two complainants, each aged 14, to kiss. It was common ground that their participation was consensual. On appeal it was argued that there could be no act of indecency in two teenagers of the same age kissing each other. However the Court disagreed and found that it was open for the jury to decide that the indecency did not arise from the act of kissing but in the instigation of the act by a 24 year old man for own sexual gratification.
Element 5: While being aware that the person is not consenting or might not be consenting or while not giving any thought to whether the person is not consenting or might not be consenting.
What does consent mean?
Consent is defined in s 36 of the Act to mean ‘free agreement’.
Section 36 of the Act provides examples of some circumstances in which there is not ‘free agreement’. These circumstances include where: (a) the person submits because of force or the fear of force to that person or someone else; (b) the person submits because of the fear of harm of any type to that person or someone else; (c) the person submits because he or she is unlawfully detained; (d) the person is asleep, unconscious, or so affected by alcohol or another drug so as to be incapable of freely agreeing; (e) the person is incapable of understanding the sexual nature of the act; (f) the person is mistaken about the sexual nature of the act or the identity of the person; (g) the person mistakenly believes that the act is for medical or hygienic purposes.
Mistake as to a characteristic of the accused
In R v Linekar  3 ALL ER 69, the court found that the fact a man who had agreed to pay a specified sum in return for sexual contact leaves without paying does not mean that consent has been vitiated by fraud.
Belief in consent
The prosecution must prove that the accused was aware that the complainant was not consenting or might not be consenting. If an accused believed that the complainant was consenting then he is not guilty of indecent assault.
The belief of an accused person that the complainant was consenting to a sexual act does not have to be reasonable. The reasonableness of a belief is no more than a guide as to whether it was in fact held and is merely a factor to be considered in determining the accused’s state of mind. An accused must be acquitted if the prosecution is unable to disprove that his belief, although unreasonable, was genuinely held.
An example is Parish v DPP  VSC 494 which concerned the alleged indecent assault of a 15 year old girl. While on the escalator at Box Hill train station, the accused rubbed a 15 year old girl’s lower back and upper buttocks. She said that she was scared and unable to move because of the other people on the escalator but did not say anything to him. On appeal from the Magistrates’ Court, Robson J held that the prosecution bore the onus of establishing beyond a reasonable doubt that the accused was not consenting or might not be consenting and, that as the prosecution had not done so, the charge of indecent assault should be dismissed. It should be noted however that in this case the accused suffered from Asberger’s syndrome and that Robson J noted that ordinarily the prosecution would have had little difficulty in establishing that the accused knew that the complainant was consenting or might not be consenting in such circumstances.
Capacity to give free agreement
In R W S v The Queen  VSCA 249, the accused had engaged in sexual acts with two women. Each of the women had a significant intellectual impairment. One had an IQ of 54 and the other had an IQ of 64. The cut-off point for intellectual disability is 70. On one occasion the accused had asked one of the women to expose her breasts and he then touched and sucked one of the breasts. A similar incident also occurred on another occasion after which the accused asked one of the women to touch and rub his penis, which she did, and he ejaculated. The accused was convicted but later appealed, inter alia, on the ground that a miscarriage of justice had occurred at the trial where it was said the prosecution case alleged that the women were incapable of consenting but that the jury had not been given directions about what amounted to an absence of capacity to consent.
While this ground was later abandoned the court did consider it. Referring to Mobilo  1 VR 399 and Eastwood (1998) 114 A Crim R 448, the court found that a person who understands the sexual nature of the act may nevertheless be incapable of freely agreeing to it, if that person’s diminished intellectual capacity precludes her from making a decision to refuse, or from understanding that she has a right to refuse consent to sexual acts. On this basis, the court found that the accused’s ground of appeal, as set out above, had been misconceived.
- Did the accused touch the complainant?
If yes, the jury will be asked to consider question 2
If no, then the accused is not guilty
- Did the accused intend to touch the complainant?
If yes, the jury will be asked to consider question 3
If no, then the accused is not guilty
- Did the accused touch the complainant in indecent circumstances?
If yes, the jury will be asked to consider question 4
If no, then the accused is not guilty
- Did the touching occur without the complainant’s consent?
If yes, the jury will be asked to consider question 5
If no, then the accused is not guilty
- At the time of the assault, was the accused giving any thought to whether or not the complainant was consenting?
If yes, the jury will be asked to consider question 6
If no, then the accused is guilty
- At the time of the assault, was the accused aware that the complainant was not consenting or might not be consenting?
If yes, the accused is guilty
If no, then the accused is not guilty
The maximum penalty is 10 years imprisonment and/or a fine of 1,200 penalty units.
The Sentencing Advisory Council has released statistics for people sentenced in the Magistrates’ Court of Victoria between 1 January 2010 and 31 December 2012. Greater detail is available on the Sentencing Advisory Council’s website, however some of the more pertinent information is outlined below.
Sentences for matters including an indecent assault
Of the 397 people sentenced in that period for matters including an indecent assault;
14.9% received a sentence of imprisonment
2.8% received a partially suspended period of imprisonment
15.9% received a wholly suspended period of imprisonment
32.5% received some form of community based order
19.1% received a fine
14.1% received an adjourned undertaking to be of good behaviour or were discharged or dismissed either with or without a conviction.
Of the people who received a period of imprisonment;
15.3% received less than three months imprisonment
15.3% received between three and six months imprisonment
18.6% received between twelve and eighteen months imprisonment
8.5% received between 18 and twenty-four months imprisonment
8.5% received between twenty-four and thirty-six months imprisonment
8.5% received more than thirty-six months imprisonment
A non-parole period was not set in 49.2% of cases but, where a non-parole period was set, the most common length was between 6 and 12 months (27.1% of cases).
The most commonly imposed length of Community Corrections Orders was between 12 and 18 months (84.5% of cases). The average length of Community Based Orders (now abolished and replaced by Community Corrections Orders) was between 12 and 24 months (88.6% of cases).
Sentences for matters for matters consisting only of charges of indecent assault
Of the 539 people sentenced for matters consisting only of charges of indecent assault, 16.9% received a period of imprisonment, 2.9% received a partially suspended sentence of imprisonment, 13% received a wholly suspended period of imprisonment, 35% received some form of community based order, 18.9% received a fine, 13.7% received an adjourned undertaking to be of good behaviour or were discharged or dismissed either with or without a conviction.
Of the people who received an aggregate period of imprisonment (aggregate sentencing occurs when the one sentence is imposed for all charges within a case, as opposed to individual sentences for individual charges), 4.4% received less than three months imprisonment, 9.9% received between three and six months imprisonment, 13.2% received between six and 12 months imprisonment, 14.3% received between 12 and 18 months imprisonment, 5.5% received between 18 and 24 months imprisonment, and 8.8% received more than 24 months imprisonment.
Of the people who received a non-aggregated period of imprisonment, 8.8% received less than three months imprisonment, 5.5% received between three and six months imprisonment, 11% received between six and 12 months imprisonment, 13.2% received between 12 and 18 months imprisonment, 5.5% received between 18 and 24 months imprisonment, and no one received more than 24 months imprisonment.
The statistics in regard to the length of community based orders imposed are the same as above.
The Sentencing Advisory Council’s Sentencing Snapshot 146 describes sentencing outcomes for indecent assault in the County Court of Victoria between 2007 and 2012. During this period 145 people were sentenced for a principle offence of indecent assault. Of those sentenced, 30% received a period of immediate imprisonment, 32% received a wholly suspended sentence of imprisonment, 8% received a partially suspended period of imprisonment, 12% received some form of community based order, 6% received a fine, and 3% received an adjourned undertaking with conviction.
The median length of imprisonment imposed was 1 year and 5 months. The most common length of imprisonment imposed was between 1 and 2 years.
Of those people who received a principal sentence of imprisonment, 93% also received a total effective sentence of imprisonment. The median total effective length of imprisonment was 2 years and 15 days.
When a person is sentenced to a term of imprisonment of one year or more, the court may fix a non-parole period. Where a non-parole period is fixed, the person must serve that period before being eligible for parole. Of those eligible to have a non-parole period fixed, 86% were given a non-parole period. The median length of the non-parole periods set was 1 year and 3 months. The most common non-parole period imposed was between 1 and 2 years.
Where an offender received a total effective period of imprisonment, the most common sentence was 2 years with a non-parole period of 1 year.
To view sentencing decisions by Victorian County Courts for the charge of Indecent Assault, visit this page.
- Indecent Assault – Dismissed
- Indecent Assault – Accused With Dementia
- Guilty Plea to Indecent Assault – No Conviction
- Indecent Act With Child Under 16 and Indecent Assault – Withdrawn
- Historical Sex Offences – Discontinuance
 Section 29(2) of the Criminal Procedure Act 2009 (Vic).
 R v Venna  QB 421; Fagan v Commissioner of Metropolitan Police  1 QB 439; R v Court  AC 28.
 R v Phillips (1971) 45 ALJR 467 at 473 per Barwick CJ.
 Fitzgerald v Kennar (1995)84 A Crim R 333 at 350 per Cole JA.
 R v Harkin (1989) 38 A Crim R 296.
 Crowe v Graham (1968) 121 CLR 375.
 DPP v Scott  VSC 129; Curtis v The Queen  VSCA 102.
 R v Coffey (2003) 6 VR 543 at 550.
 S L J v The Queen  VSCA 193 at 23 per Redlich JA.
 R v Zilm  VSCA 72 at  per Callaway J.
 R v Zilm  VSCA 72 at  per Callaway J and Southwell AJA.
 R v Munday (2003) 7 VR 423 at 440 per Callaway J and Batt JA
 R W S v The Queen  VSCA 249 at  per the court.
 Section 39(1) of the Crimes Act 1958 (Vic).
 If a person is sentenced for a case with a single charge, the offence for that charge is the principal offence. If a person is sentenced for more than one charge in a single case, the principal offence is the offence for the charge that attracted the most serious sentence according to the sentencing hierarchy.
 The total effective sentence in a case with a single charge is the principal sentence. The total effective sentence in a case with multiple charges is the sentence that results from the court ordering the individual sentences for each charge to be served concurrently (at the same time) or wholly or partially cumulatively (one after the other).