INDECENT ASSAULT

This offence only applies to offending that is alleged to have occurred between 1 January 1992 and 1 July 2015. It is applied retrospectively, so if someone reports a historical sex offence, a person may still be charged with this offence. If the offending occurred after that date, it is charged as Sexual Assault.

Indecent Assault is a serious offence with potentially severe penalties.

If you are charged with Indecent Assault reach out to one of our experienced lawyers at Gallant Law.

Each case is unique and complex and the team at Gallant Law will take the time and care necessary to provide you with the best possible representation.

What is the law?

The law can be found in section 39 of the Crimes Act 1958 (repealed). It stated that a person commits Indecent Assault if they assault another person in indecent circumstances, while being aware that the person is not or might not be consenting; or while not giving any thought to whether the person is not consenting or might not be consenting (inadvertence).

What is the maximum penalty?

A person found guilty of Indecent Assault can receive up to a maximum of 10 years imprisonment.

They may also be placed on the Sex Offender Register, which involves many additional obligations. Click here for more information.

What do the police need to prove?

The police (or prosecution) must prove each of the following elements beyond a reasonable doubt:

Click here for more information on the meaning of ‘beyond a reasonable doubt’

1. That the accused assaulted another person;
2. Intentionally;
3. Without lawful justification;
4. While being aware that the other person was 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; and
5. That the assault was in indecent circumstances.

What is “assault”?

Assault includes both the application of force by unlawful contact and the immediate threat or fear of unlawful contact.

What is “indecent”?

An assault will be considered indecent if there is physical contact (or fear thereof) of an indecent kind. This is determined by community standards and can include, for example touching on the breasts or buttocks. It does not need to be aggressive or hostile.

What is “consent”?

At the relevant time that this legislation was in force, consent meant “free agreement”. The legislation describes (non-exclusively) several situations in which a person does not freely agree to an act. For example, submitting to an act in circumstances of “force or fear of force”; or submission due to a lack of understanding due to someone’s intellectual capacity do not amount to “consent”.

What are the possible defences?

Consent

If the alleged act was consensual, it will not be an Indecent Assault.

It is not a defence for someone to say that they were not aware that the complainant was probably not consenting just because they had not given it any thought.

Which court will I be going to?

Indecent Assault is an indictable offence, usually heard in the County or Supreme Court, however, some Indecent Assault charges can be heard in the Magistrates’ Court.

What should I do now?

If you have been charged with Indecent Assault contact Gallant Law on (03) 9070 9885 or welcome@gallantlaw.com.au to speak of one of our lawyers immediately. We service all of Australia.

*Please note this article only relates to a Victorian offence. For information on other states and territories within Australia, please contact our office.

Our website does not give legal advice.

This material is produced by Gallant Law lawyers. It is intended to provide general information only, current at the time of first publication. The contents do not constitute legal advice and should not be relied upon as such. Formal legal advice should always be sought before acting or failing to act.

Article by Lauren Cassimatis – Principal lawyer

Meet Lauren Cassimatis

Principal Lawyer, Director & Founder | Accredited Criminal Law Specialist Lauren is one of Victoria’s leading criminal lawyers and a Law Institute of Victoria Accredited Specialist in Criminal Law.