Indecent Assault

Question 1

Section and Penalty

Answer 1

CA61; S135

7 Years Imp

Question 2

Indecent Assault - Elements

Answer 2

• *1. A person:**
• Gender neutral

2. Indecently assaults:
- Assaults - Definition (CA61; s2 - can be shortened eg as per CA61; s2 the act of intentionally applying or attempting to apply force to the person of another, directly or indirectly)
- Indecent aspect - R v Court; R v Dunn
- What the Crown must prove (intended the conduct / subjective; objective test)
RTS

• *3. Another person:**
• Gender neutral

Question 3

R v Leeson

(Rhymes with Neeson - “I will find you. And I will kill you. For doing an indecent act on me.”)

Answer 3

The definition of ‘indecent assault’ “… is an assault accompanied with circumstances of indecency.”

Question 4

What must the prosecution prove regarding a charge of indecent assault?

Answer 4

• The defendant intentionally assaulted the complainant
• The circumstances accompanying the assault were indecent
• The defendant intended the conduct that a reasonable person would find indecent.

If consent is raised as an issue, a further two elements must also be proved:

• The complainant did not consent to the assault; and
• The defendant did not honestly believe the complainant was consenting

Question 5

Indecent Act

Legislation

For the purposes of this Act, one person does an indecent act on another person whether he or she—

Answer 5

CA61; S2(1B):

For the purposes of this Act, one person does an indecent act on another person whether he or she—

(a) does an indecent act with or on the other person; or
(b) induces or permits the other person to do an indecent act with or on him or her.

Question 6

R v Court

(Court - tennis - A tennis coach holds his student’s bottom while she serves - says it helps with her serve)

Answer 6

Indecency means “conduct that right-thinking people will consider an affront to the sexual modesty of (the complainant)”

Question 7

Assault

Answer 7

S2 CA61

Assault means the act of intentionally applying or attempting to apply force to the person of another, directly or indirectly, or threatening by any act or gesture to apply such force to the person of another, if the person making the threat has, or causes the other to believe on reasonable grounds that he has, present ability to effect his purpose

Question 8

Person

Answer 8

Gender neutral, proven by judicial notice or circumstantial evidence

Question 9

R v Dunn

(‘Dunn’ in light of the time, place and circumstances - and it didn’t involve trifle)

Answer 9

Indecency must be judged in light of the time, place and circumstances. It must be something more than trifling, and be sufficient to “warrant the sanction of the law”

Question 10

R v Dunn - Test for indecency

Answer 10

“The test for indecency is whether the conduct offend[s] against a reasonable and recognised standard of decency which … ordinary and reasonable members of the community ought to impose and observe in this day and age …”

Question 11

Belief in Consent

Differs between two offences

Of note only

Answer 11

With sexual violation, an honest belief in consent is not sufficient unless there are reasonable grounds for that belief; with indecent assault, an honest belief alone is sufficient even if not reasonable.

Question 12

Consent

Answer 12

Consent is a person’s conscious and voluntary agreement to something desired or proposed by another.

Question 13

R v Cox - consent

Answer 13

Consent must be full, voluntary, free and informed … freely and voluntarily given by a person in a position to form a rational judgement.

Question 14

R v Norris - Defence to indecent assault

(Who would be brave enough to convict Chuck Norris of indecent assault?)

Answer 14

If a person who is charged with indecent assault is able to establish that they honestly believed that the complainant was consenting, they are entitled to be acquitted even though the grounds of his belief were unreasonable.

Question 15

Matters that do not constitute consent (PIN FAIA)

Answer 15

CA61; S128A

A person does not consent to sexual activity:

(1) Just because he or she does not Protest or offer physical resistance to the activity
(2) With another person if he or she allows the sexual activity because he or she is mistaken about the other person’s Identity.
(3) If he or she allows the act because he or she is mistaken about its Nature and quality.

(4) If he or she allows the activity because of
- Force applied to him or her or some other person
- The threat (express or implied) of the application of force to him or her or some other person
- The fear of the application of force to him or her or some other person

(5) If the activity occurs while he or she is Asleep or unconscious.
(6) If the activity occurs while he or she is affected by an Intellectual, mental, or physical condition or impairment of such a nature and degree that he or she cannot consent or refuse to consent to the activity.
(7) If the activity occurs while he or she is so affected by Alcohol or some other drug that he or she cannot consent or refuse to consent to the activity.

Question 16

Subjective Test - absence of consent

Answer 16

Whether or not the complainant was consenting is a subjective test from the complainant’s point of view, ie what was the complainant thinking at the time?

The Crown must prove that the complainant was not consenting to the sexual act at the time it occurred - it is not for the defendant to prove that he/she was consenting.

Question 17

Subjective test - belief in consent

Answer 17

If it is established that the complainant was not consenting, the next question is whether or not the defendant believed he/she was consenting at the time. This is a purely subjective test from the defendant’s point of view, ie what was the defendant thinking at the time?

If he/she did believe he/she was consenting, an objective test must then be applied to determine whether there was a reasonable basis for his/her belief.

Question 18

Objective test - reasonable grounds for belief in consent

Answer 18

What would a reasonable person have believed if placed in the same position as the defendant?

If a reasonable person would, in the same circumstances, have believed the complainant was consenting, the jury may well acquit the defendant. If a reasonable person would not have believed he/she was consenting, the jury is more likely to convict.

Question 19

R v Gutuama

Answer 19

Under the objective test, the Crown must prove that “no reasonable person in the accused’s shoes could have thought that the complainant was consenting.

Question 20

Reluctant consent

(of note only)

Answer 20

R v Herbert:

The Court held that a true consent may be given reluctantly or hesitantly and may be regretted afterwards, but if the consent is given even in such a manner, provided it is without fear of the application of force or the result of actual or threatened force, then the act of sexual connection would not be rape.

Question 21

Recklessness as to consent

Answer 21

Recklessness as to whether or not the complainant is consenting is not consistent with having a reasonable belief in consent.

Question 22

When is consent relevant?

Answer 22

R v Adams:

The material time when consent, and belief in consent, is to be considered is at the time the act actually took place.

Question 23

R v Koroheke - Consent

Answer 23

It is important to distinguish between consent that is freely given and submission by a woman to what she may regard as unwanted but unavoidable. For example, submission by a woman because she is frightened of what might happen if she does not give in or co-operate, is not true consent.