Overview

As a result of new legislation, the offence of indecent assault has been replaced with the offence of sexual touching.

You can learn about these changes here.

 

What is indecent assault?

Indecent assault was an offence under section 61L of the Crimes Act 1900 (NSW). It has since been replaced, however someone can be charged with indecent assault if the incident took place before 1 December 2018. Indecent assault occurs when:

  • The accused assaulted the victim,
  • The assault was “indecent”,
  • The victim did not consent, and
  • The accused knew that, or did not care whether, the victim was not consenting, and committed the assault anyway.

While not considered as serious as a sexual assault, this is still considered to be a serious offence.

 

Defining “indecent”

“Indecent” is defined as “contrary to the ordinary standards of respectable people in this community”, and carries a sexual connotation or overtone. The offence does not include penetration or sexual intercourse. An allegation of indecent assault can involve inappropriate touching or fondling of breasts, buttocks or genitalia.

 

Aggravated indecent assault

If a person commits an indecent assault in circumstances of aggravation, under section 61M of the Act a person can be charged with aggravated indecent assault. Circumstances of aggravation include where:

  • The offence was committed in company.
  • The victim was under the offender’s authority.
  • The victim had a serious physical disability.
  • The victim had a cognitive impairment.

A person could also be guilty of aggravated indecent assault if the victim is under the age of 16 years.

 

Penalties

The maximum penalty for indecent assault is five years imprisonment. In circumstances of aggravation it is seven years imprisonment, and 10 years imprisonment if the victim was under the age of 16.

If the offence remains in the Local Court, then the maximum penalty is two years imprisonment. Alternative penalties often include a conditional release order with conviction, community correction order or intensive correction order. Learn more about the types of penalties for criminal offences.

 

Frequently Asked Questions

In which court will indecent assault charges be heard?

Indecent assault charges will ordinarily be dealt with in the Local Court. In rare circumstances, they may be heard in the District Court, but this would usually only occur if a defendant is also charged with further more serious offences that must be dealt with by the District Court.

What factors will be considered in sentencing?

To determine the seriousness of the offence and the severity of the punishment, the judge can consider several factors. Aggravating circumstances might include:

  • A breach of trust.
  • Use of a weapon.
  • Home invasion.

Mitigating circumstances include

  • The age of the offender.
  • Mental conditions suffered by the offender.
  • Any punishment already inflicted on the offender by others.

Why is proving indecent assault difficult?

There are inherent difficulties in proving indecent assault unless a person is caught in the act or makes an admission. By the very nature of the offence, it is mostly committed without independent witnesses. There are frequently delays in the complaint being made due to the age of the alleged victim, embarrassment, or a lack of recognition that what occurred was “wrong”.

How can the charges be successfully defended?

Defending indecent assault allegations requires meticulous attention to detail and preparation which means that you need an experienced defence lawyer. If you have been charged with indecent assault, contact one of our defence lawyers immediately.

We can advise you of your rights. You have a right to silence. You have a right to speak with a lawyer. Typical advice upon arrest for this type of matter would be not to take part in an interview or questioning without legal advice.

If you are a suspect in custody the police may want to conduct a forensic procedure. This could involve taking a buccal swab. You should obtain advice first and the police must afford you the opportunity of seeking advice. We can help you to protect your rights, explain the relevant procedures, and if necessary apply for bail and represent you in court.

If you want to plead guilty, we will assist you in negotiating with police to obtain the best possible plea deal. We then focus on preparing for sentencing, which can include gaining access to pre-trial diversion courses, counselling, pre-sentence reports, and obtaining character references.

How can we help?

We are experienced in successfully defending indecent assault and related charges.

Book a free consultation or call us on 1300 668 484 for 24/7 legal advice.

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