LAWS1016 Indecency

Question 1

Elements of Indecent Asssault

Answer 1

AR

1. Common assault (AR + MR)
2. Committed in circumstances of indecency
3. and without consent

MR

1. intention to commit the assault.
2. intention to commit the indecent act.
3. knowledge or inadvertent recklessness as to the absence of consent.

Question 2

Other offences of Indecency

Answer 2

s61L Indecent assault.
s61M(1) Aggravated indecent assault.
s61M(1) Indecent assault in circumstances of aggravation against victims under 16.
s61N(1) Act of indecency against victims over 16.
s61N(2) Act of indecency against victims under 16.
s61O(1) Act of indecency in circumstances of aggravation against victims under 16.
s61O(1A) Act of indecency in circumstances of aggravation against victims over 16.
s61O(2) Act of indecency in circumstances of aggravation against victims under 10.
s61O(2A) Act of indecency in circumstances of aggravation against victims under 16 and knows that it is filmed for the purposes of child abuse material.

Question 3

Definition of Indecency

Answer 3

“contrary to the ordinary standards of morality of respectable people within that community.” Sexual connotation – part of the body touched / doing the touching (genitals, breasts, anus) is relevant (Harkin).

Question 4

Definition of “Consent” for Indecency Offences.

Answer 4

• For children under 16, consent is not a defence to an indecent assault charge.
• For individuals above 16, definition of consent under s61HA does not apply to indecent assault (s61HA(1)), so the definition would be derived from common law. It is likely that consent would be defined as “freely and voluntarily (i.e. without duress)” agreeing, as this was the definition in common law even before the enactment of s61HA(2).

Question 5

HRMF defence as to the question of age is available to D.

Answer 5

*must be a positive belief

Question 6

Common Circumstances of Aggravation

Answer 6

1. In company.
2. Under Authority of the alleged offender (generally or at the time of commission).
3. Victim possesses a Serious physical disability.
4. Victim possesses a Cognitive Impairment.
5. Victim under 16 or 10.
6. Victim is filmed.