Indecent assault is the offence of intentionally sexually touching a person without their consent, which falls short of penetration, which is defined as rape.
The offence of sexual assault was previously known as indecent assault in Victoria, modified in 2015 to reflect the true nature of the offence, which previously must have been in ‘indecent circumstances’. Indecent circumstances was defined by the jury, to reflect community standards at the time.
The sexual assault definition has also been updated, whereby the recipient of the touching does not consent and the accused does not reasonably believe that the recipient consents. The accused must have touched the person consciously, voluntarily and deliberately, which demonstrates intent.
Touching can be done with any part of the body or an object, and any touching is enough to satisfy this part of the offence. Touching may be done through clothing, or can include the accused causing another person or animal to touch the complainant.
The touching must be sexual, which includes the genitals, anal area, buttocks or breasts of either party. The touching may be sexual if the toucher seeks or achieves sexual gratification from the touching.
Consent
Consent is recognised as a state of mind, and therefore the prosecution must prove that the touching was not agreed to. The prosecution must prove that the accused did not reasonably believe that the complainant was consenting.
Proving sexual assault
The police or prosecution must prove beyond a reasonable doubt that the accused intentionally sexually touched the victim, and that you were aware that the person did not give consent.
If there is a reasonable belief that the complainant could be consenting or believed to be consenting, then a not-guilty finding must be made. All the circumstances of the allegations will be taken into consideration.
This consideration includes whether reasonable steps were taken to ensure consent was being given. Beliefs about people or stereotypes about behaviour, clothing or other false indicators are not enough. A situation, and its resultant beliefs (for example a boozy Tinder date), is also not enough to satisfy the consent element.
Intoxication levels are not allowed to come into play in the courtroom, deemed irrelevant.
Compelling someone to touch themselves or another person is also part of the sexual assault offence.
Because of the seriousness of the charges, sexual assault charges are usually held in County Court, which is a step up from the Magistrates’ Court.
Defences for sexual assault
There are three ways to defend yourself against an indecent assault charge:
- The victim consented
- You were under duress at the time
- It was necessary to undertake the action
Outcomes if you are found guilty of indecent assault
You may be given a prison sentence, a suspended sentence (only before offences committed prior to 1 September 2014), a community corrections order, a fine, an adjourned undertaking, discharge, case dismissal or a diversion.
What to do if you are under investigation or charged
We recommend that you contact us or another criminal lawyer immediately for advice. These charges are serious and require a knowledgeable lawyer who can guide you through the process and trial.
Contact us for a free, quick chat about your circumstances to see if we can help you.