Indecent assault is a serious criminal offence in South Australia under section 56 of the Criminal Law Consolidation Act 1935 (SA) that serves as a statutory alternative to the charge of rape and covers acts of molestation that falls short of rape, requiring proof of assault and an element of indecency.
What is the Penalty for Indecent Assault?
A person found guilty of committing indecent assault in South Australia faces the risk of significant terms of imprisonment. The maximum penalty is eight years imprisonment for a basic offence, and ten years of imprisonment if aggravating factors in section 5AA of the Criminal Law Consolidation Act 1935 (SA) apply or where the victim is under the age of 17. If the victim of the offence is under the age of 14, the maximum penalty increases to fifteen years of imprisonment.
What is the definition of Indecency?
Indecency is that which offends against currently accepted standards of decency. This is typically determined by a jury who decides whether right-minded persons would consider the conduct indecent. This test is on an objective standard and considers what an ordinary person may consider disgusting, revolting, shocking or otherwise indecent. There is no need for separate acts of assault and indecency. Any assault which in itself could constitute an indecent act will suffice.
For example, this may include the laying on of hands without the consent or against the will of the victim. The indecent assault must have some sexual connotation or element of lewdness which may be derived by the part of the accused’s body used to do the touching or from the body area where the victim has been touched.
For example, the touching breast, buttocks or genitalia would be sufficient. The offence can be committed intentionally or recklessly, therefore intentionally touching someone in an indecent way either knowing or recognizing the possibility that they were not consenting is sufficient.
Helpful Questions & Answers
What Does the Prosecution Have to Prove?
If a person is charged under section 56 of the Act, the Prosecution must prove beyond a reasonable doubt that:
- There was an intentional and unlawful application of force to another person – mere touching is sufficient.
- That the assault was in circumstances of indecency, that is, offensive to community standards of common proprietary.
What Happens After Being Charged With Indecent Assault?
Following a police interview and upon being charged for indecent assault, the accused appears in the Magistrates Court of South Australia, and the case may later be committed to the District Court for trial or sentencing.
If you are charged with this offence, you should seek legal representation and advice at the earliest opportunity from a specialist criminal defence lawyer. Our experienced criminal lawyers can assist you with the preparation of your defence and represent you at Court hearings in the Magistrates Court, District Court and Supreme Court of South Australia.
If you are guilty of the offence, we can assist you by entering your plea of guilty and making submissions on your behalf to try and get the penalty reduced.
What Defences Exist for Indecent Assault?
Despite the serious nature of being charged for indecent assault, several defences exist. Our defence lawyers specialising in indecent assault charges have successfully argued that there was either a lack of intent or that the victim freely consented to the sexual act in question. It is therefore crucial to speak with a criminal lawyer and ensure you are well advised of your rights and possible defences.
Does the Defence of Consent Apply?
The Prosecution must prove the absence of consent, similar to a rape case. This proof requires demonstrating knowledge or foresight of the accused about the victim’s lack of consent. There are exceptions for children and young person’s where consent is not a valid defence.
Consent must be freely given by a person with the capacity to do so. However, there are situations where apparent consent is not valid.
Examples include fraud concerning identity, the nature and quality of the act, use of force or threats, or cases involving mentally disordered persons or temporary incapacity due to alcohol or drugs.