If you have been charged with indecent assault, you may be wondering how prosecutors will be able to prove the charge, whether what you did counts as ‘indecent’ and any available defences to the charge.
Here’s what you need to know.
The Offence of Indecent Assault
The offence of indecent assault in Western Australia is outlined under section 323 of the WA Criminal Code, and applies if a person unlawfully and indecently assaults another person.
An assault charge involves touching, moving or applying force of any kind to another person without their consent. The term ‘indecency’ refers to the act being contrary to the standards of a reasonable person (see below).
The maximum penalty for this offence is 5 years imprisonment (if prosecuted as an indictable offence) or 2 years imprisonment and a fine of $24,000 (if prosecuted as a summary offence).
The Offence of Aggravated Indecent Assault in WA
The offence of aggravated indecent assault is outlined under section 324 of the Code, which involves an indecent assault within “circumstances of aggravation” including:
- The offender is in a family relationship with the victim of the offence; or
- A child was present when the offence was committed; or
- The conduct of the offender in committing the offence constituted a breach of an order; or
- The victim is of or over the age of 60 years.
The maximum penalty for this offence is 7 years imprisonment (if prosecuted as an indictable offence) or 3 years imprisonment and a fine of $36,000 (if prosecuted as a summary offence).
If an aggravated indecent assault occurs within the context of a home invasion or burglary, a minimum sentence of 5 years imprisonment may apply.
When Is An Assault ‘Indecent’?
Although there is no legal definition, the term ‘indecent’ generally carries connotations of sexual lewdness. Generally, an assault will be deemed ‘indecent’ if a reasonable person would find the act unbecoming or offensive to common property.
Common examples include a person touching another person’s breasts, genitals or buttocks without their consent or touching other body parts whilst exhibiting sexual gratification from the act.
Defending Against An Indecent Assault Charge
If you are charged with indecent assault, the burden of proof is on the prosecution. Commonly used defence may include:
- The accused did not in fact, commit the act alleged.
- The complainant consented to the assault.
- The act was not indecent or did not constitute an assault.
- The defence of mistake of fact (see below)
A formal legal defence applies (such as necessity or duress)
A common defence to a charge of indecent assault is that the accused had an honest and reasonable belief at the time that the other person consented to the act constituting the assault. This is outlined under section 24 of the Code as:
A person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as he believed to exist
If found guilty of the offence of unlawful indecent assault an experienced criminal defence lawyer would likely argue that you should receive the most lenient sentence possible given your circumstances