Indecent assault is defined in Western Australia as unwanted touching, attempted touching, or threat to touch someone else’s body sexually without consent against an adult victim. Examples include kissing or inappropriately touching someone’s breasts, buttocks, or genitals. The goal is typically sexual arousal or gratification. However, failing to achieve the goal is insufficient to overlook the crime.
Attempted touching or threat to touch are included because the act of assault includes provisions for immediate threats or fear of unlawful contact to be categorized as assault even though no physical force occurred.
What is Assault?
The term assault usually brings to mind the idea of violent physical contact. However, the word assault is defined as an application of force that can be direct or indirect. It causes an immediate threat or fear of unlawful contact. By this definition, an assault can happen with no contact on the part of the accused towards the victim. Bodily harm may or may not be present for assault charges.
How is Indecent Assault Different from Sexual Assault?
Indecent assault involves unwanted groping or touching (including attempts or threats). While touching is sexual, it differs from sexual assault.
Sexual assault is a colloquial term for indecent assault and sexual penetration without consent. Indecent assault does NOT include penetration with a body part or another object.
Severity
Abuse of Power and Misuse of Trust
The severity of the crime increases if the perpetrator assaults persons under the legal age of consent, has a mental or cognitive disability, or if the alleged assailant is in a position of power over the victim.
Abusing a position of power will be weighed during the trial. Children are susceptible to requests from those in authority and are easy to influence with threats such as a parent dying if you tell about these acts or someone hating them because these acts are the victim’s fault.
Examples of positions of power include:
- Parents or guardians
- Teachers
- Coaches
- Clergy
- Childcare workers
- Other family members
- Close family friends
The Level of Corruption
The Court will weigh the degree to which the indecent assault corrupted the minor when considering sentencing. For example, the degree of corruption is less if a defendant committed an act of indecent assault against a 16-year-old with a history of juvenile offences than if a defendant convinces a three-year-old child to remain quiet about acts of indecent assault.
Grooming
An insidious practice where an adult:
- Prepares a child under the age of 16 to accept acts of indecent assault as acceptable because their relationship is ‘special’ or in exchange for rewards.
- Rewards a child under 16 for silence and ‘keeping their secrets’ regarding indecent assault.
- Has desensitized a child under 16 to acts of indecent assault by frequent repetition of the acts of indecent assault
What Amounts to Indecency?
For the offence to amount to “indecent assault,” it must happen in “indecent circumstances.” This means that the assault was accompanied by elements of sexual lewdness or sexual connotation. Indecent is not defined by law but by case law.
The ideas of sexual lewdness and sexual connotation are determined by community standards of decency are a threshold. An objective attempt to label an act indecent is to test it against what an ordinary person would view as sexual, shocking, revolting, or disgusting.
For an offence of indecent assault to receive the label of aggravated, the victim of the assault must have been under the age of 14 when the crime happened.
What Does the Prosecution Have to Prove?
To get a conviction on the charge of indecent assault, the burden of proof is on the prosecution. Prosecutors must show beyond a reasonable doubt that the accused:
- Performed an act that was indecent or incited another to perform an indecent act
- The act was committed against another person
- The person the act was committed against did not consent
- The act of assault is objectively an indecent act
- The alleged perpetrator knew the victim was not consenting or may not be consenting but did not care. They performed indecent assault giving no thought to the victim’s feelings.
What is the Potential Penalty if Found Guilty of Indecent Assault?
The penalties if a person is convicted of indecent assault can vary based on the specifics of the case. In some cases, a bond or fine may be issued for a conviction of indecent assault. In other cases, a defendant found guilty can receive up to five years in jail.
If the offence is aggravated indecent assault, penalties can be much steeper, with a maximum sentence of ten years in jail.
Case Studies
Here are a few case studies of indecent assault and the outcomes in Court.
R v Court [1989]
The accused struck a 12-year-old girl around 12 times on the buttocks for no apparent reason. When the police asked him why he had done this, the man replied, “I don’t know, buttock fetish.” This statement turned an act that ordinarily might be considered an assault into an indecent assault.
The Court’s Decision
Because the act of striking the child on the buttocks could be considered indecent or not, the prosecution had to prove that the accused intentionally assaulted the 12-year-old girl. Still, he also intended to commit an assault that community standards would be considered lewd or indecent. Because the statement the defendant made to police was admissible in Court, he was found guilty of indecent assault.
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The defendant made his nine-year-old stepdaughter touch his naked penis for several minutes on two different occasions. On both occasions, the child pretended to be asleep when the indecent act took place. On a night when the child had a ten-year-old friend visiting, the defendant mistakenly had the friend touch his naked penis.
The Court’s Decision
This case was listed in the Magistrates’ Court. Because the matter related to very young children, the case was exceptionally difficult. The defendant fully cooperated with the police, made admissions of guilt, and showed a significant amount of remorse. A psychological report revealed that the defendant experienced sexual abuse during his childhood. The Court held that this reduced his moral culpability.
The Magistrate took all of these factors into account and handed down a sentence of nine months in prison. The Magistrate completely suspended six months of the sentence leaving the defendant to serve a three-month prison sentence. The penalty is notable because in cases involving very young children, the Court has repeatedly held that sexually offending children should receive a punishment of years in prison and not mere months.
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In this case, the defendant worked for a security company. While on the job for a client, he asked a young female employee to help him find a power source. Later the employee told a friend that the defendant had touched her leg and buttocks.
The Court’s Decision
At the Magistrate’s Court, the defendant’s boss and owner of the security company took the stand to testify about the defendant’s exemplary work record and commend his good character.
Upon cross-examination, the accuser changed an essential detail from her first statement. The defence lawyer also uncovered that she had mental health issues and was dismissed from previous jobs for dishonesty.
The Magistrate concluded that this cast reasonable doubt over the accusations, and the defendant was found not guilty.
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CYD v The State of Western Australia
The defendant took his 18-year-old stepdaughter to a remote location for a driving lesson. Having sabotaged the car to break down, he told the victim he would walk a bit to look for cell phone service. He returned shortly wearing a mask, holding pliers, and using a voice-changing mechanism he had hidden before the driving lesson.
He held the pliers to the victim’s throat, fastened her hands together, and used cable ties around her neck to secure her to the car’s headrest. The defendant then fondled the victim through her clothing and told her she was about to be gang raped. When the victim began to scream, he cut the ties and fled the scene. The defendant returned to the car, pretending not to know about the assault.
When police confronted him, he denied knowledge of the incident but was charged and released on bail with the condition he would have no contact with the victim or be there when she visited the family home.
After the victim visited her family, weeks later, the defendant followed her in his car, which he modified to look like a police car. He prompted her to stop, forced her into the passenger seat, blindfolded her, and drove to a remote location. He forcibly removed her clothing and used the victim’s cell phone to take pictures of her naked body, sending them to his phone. He then drove her back to where she had stopped and told her he was calling the police because she was sending him naked photographs. He was arrested and tried.
The Court’s Decision
Due to the seriousness of the assaults, including premeditation, the defendant received nine years in prison.
If you are accused of indecent assault, you should not wait for legal representation. At WN Legal, our team of experienced criminal attorneys has helped hundreds of clients get the best possible outcome for offences like indecent assault. We can make sure you have a fair trial.
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