Indecent Assaults

Question 1

If the issue of consent is raised on the evidence the prosecution must prove beyond reasonable doubt a further two elements:

Answer 1

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

Question 2

In these cases the prosecution must prove that:

Answer 2

• 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.

Question 3

Indecent intent

Answer 3

Indecent assault cannot be committed accidentally; it must be proved that the defendant intended to act indecently.

So, a man who deliberately pushes a woman and in doing so accidentally rips her top may be guilty of a common assault, but not of an indecent assault.

Question 4

Section 135 requirement

Answer 4

Section 135 requires proof of an assault, although it does not need to be forceful or violent; a gentle caress may suffice.

Given the wide definition of assault, indecent assaults may include attempts to apply force and threats by act or gesture to apply force in circumstances of indecency.

Question 5

Defence for adults, no defence for child or young person

Answer 5

Consent is a defence to indecent assault involving an adult complainant, however the consent of a person under 16 years of age is not a defence under ss132 and 134.

Question 6

Belief in consent

Answer 6

Although lack of consent is a common factor to both sexual violation and indecent assault, the issue of belief in consent differs between the two offences.

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.