Indecent Assault Flashcards
Section and Penalty
CA61; S135
7 Years Imp
Indecent Assault - Elements
- *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
R v Leeson
(Rhymes with Neeson - “I will find you. And I will kill you. For doing an indecent act on me.”)
The definition of ‘indecent assault’ “… is an assault accompanied with circumstances of indecency.”
What must the prosecution prove regarding a charge of indecent assault?
- 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
Indecent Act
Legislation
For the purposes of this Act, one person does an indecent act on another person whether he or she—
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.
R v Court
(Court - tennis - A tennis coach holds his student’s bottom while she serves - says it helps with her serve)
Indecency means “conduct that right-thinking people will consider an affront to the sexual modesty of (the complainant)”
Assault
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
Person
Gender neutral, proven by judicial notice or circumstantial evidence
R v Dunn
(‘Dunn’ in light of the time, place and circumstances - and it didn’t involve trifle)
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”
R v Dunn - Test for indecency
“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 …”
Belief in Consent
Differs between two offences
Of note only
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.
Consent
Consent is a person’s conscious and voluntary agreement to something desired or proposed by another.
R v Cox - consent
Consent must be full, voluntary, free and informed … freely and voluntarily given by a person in a position to form a rational judgement.
R v Norris - Defence to indecent assault
(Who would be brave enough to convict Chuck Norris of indecent assault?)
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.
Matters that do not constitute consent (PIN FAIA)
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.
Subjective Test - absence of consent
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.
Subjective test - belief in consent
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.
Objective test - reasonable grounds for belief in consent
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.
R v Gutuama
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.
Reluctant consent
(of note only)
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.
Recklessness as to consent
Recklessness as to whether or not the complainant is consenting is not consistent with having a reasonable belief in consent.
When is consent relevant?
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.
R v Koroheke - Consent
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.
