Sexual and Indecent Assault (Outline)

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This article provides an extremely short outline of how to argue the offences of sexual and indecent assault. Due to the complexity of this area of the law, it is highly recommended that one reads the detailed explanation before referring to this condensed outline.

'Basic' sexual assault: s 61I.

  • Actus reus: both of the following limbs:
    1. The accused must have had sexual intercourse with the victim.
      • Sexual intercourse is broadly defined to include any penetration of the vagina or anus (no matter with what, except if for medical purpose) or any sexual connection between genitalia and mouth (or the continuation of any of these such acts): s 61H (1).
    2. Without the victim's consent.
      • Consent must be freely and voluntarily given: s 61HA (2).
      • The lack of actual physical resistance does not automatically signify consent: 61HA (7).
      • There will be no consent if the victim:
        • Doesn't have the capacity to consent (eg, because of age or mental disability): 61HA (4).
        • Doesn't have the opportunity to consent (eg, because unconscious or asleep): 61HA (4).
        • Consented under threats (whether to them to to another): 61HA (4).
        • Consented because they are unlawfully detained: 61HA (4).
        • is under the mistaken belief as to the identity of the accused: 61HA (5).
        • is under the mistaken belief that the accused is married to the person: 61HA (5).
        • is under the mistaken belief that the sexual intercourse is for medical or hygienic purposes (or under any other mistaken belief about the nature of the act induced by fraudulent means): 61HA (5).
      • The court may establish that there was no consent on the grounds that (:61HA (6)):
        • the victim was substantially intoxicated.
        • the victim was intimidated or coerced (does not necessarily involve the use or threat of force).
        • the victim had intercourse because of an abuse of a position of authority or trust.
  • Mens rea: both of the following:
    1. Intended to have sexual intercourse and
    2. Had knowledge of a lack of consent. Knowledge of a lack of consent occurs when (any of the following) (:61HA (3)):
      1. Actual knowledge that there is no consent.
      2. Recklessness as to whether the victim consents.
        • Includes inadvertent recklessness (where the accused didn't even consider whether there was consent or not although the risk of non-consent was obvious): Kitchener; Banditt.
      3. Lack of reasonable grounds for believing there is consent (objective test, will apply even if the accused an honest belief there was consent).
      4. Consent was obtained because the victim was under a mistaken belief (see above), and the accused was aware of the mistaken belief: 61HA (5).
        • Note: steps taken by the accused to ascertain consent are to be considered. Self-induced intoxication is not taken into account: 61HA (3).
  • Max sentence: 14 years imprisonment.


Aggravated sexual assault: s 61J.

  • Actus reus: normal sexual assault (see above) + circumstances of aggravation. These include (in this section):
    • Intentional or reckless infliction of actual bodily harm to the victim or a person nearby.
    • Threat to inflict actual bodily harm on the victim or a person nearby with a weapon or instrument.
    • The offender is in company.
    • Victim is under 16 years old.
    • The victim is (generally or at the time of the offence) under the authority of the alleged offender.
    • The victim is seriously physically or mentally disabled.
    • The offence is a part of a break and enter with intention to commit this offence or any serious indictable offence (note: specific intent).
    • The offender deprives the victim of liberty before or after the offence.
  • Mens rea: same as sexual assault (except where specific intent).
  • Max penalty: 20 years imprisonment.


Aggravated sexual assault in company: s 61JA.

  • Actus reus:
    1. Basic sexual assault (see above).
    2. The accused is in the company of others.
      • The mere presence of a person is not sufficient -> There must also be some encouragement or assistance: Crozier.
      • Physical presence is an elastic concept. The test is that there must be such proximity as to enable the coercive effect of the group to embolden or reassure the offender, or intimidate the victim: Button; Griffen.
    3. And did either of the following before, during, or after the offense:
      1. intentionally or recklessly inflicted actual bodily harm to anyone present, or
      2. threatened to inflict actual bodily harm with a weapon to anyone present, or
      3. deprived the liberty of the victim before or after the offence.
  • Mens rea: basic sexual assault requirement (knowledge).
  • Max penalty: life imprisonment.

Indecent assault: s 61L.

  • Actus reus (:Fitzgerald v Kennard):
    1. Common assault (physical contact without consent or lawful excuse/act causing apprehension of...) and
    2. Act of indecency :
      • Indecency “simply means contrary to the ordinary standards of morality of respectable people within the community”: Harkin
      • However, it must have a sexual connotation: Harkin
      • The indecent act can also constitute the act of assault: Fitzgerald v Kennard
  • Mens rea (:Fitzgerald v Kennard):
    1. Intention or recklessness to commit the act/s, and
    2. Intention/recklessness (including inadvertent recklessness) as to whether there was consent.
  • Max penalty: 5 years imprisonment.

Aggravated indecent assault: s 61M.

  • Actus reus: indecent assault + circumstances of aggravation. T
    • Circumstances of aggravation include:
      • The offender is in company.
      • The victim is (generally or at the time of the offence) under the authority of the alleged offender.
      • The victim is seriously physically or mentally disabled.
    • Subsection 1 creates the offence for a victim/person being incited under 16, subsection 2 for people over 16.
  • Mens rea: same as indecent assault.
  • Max penalty: 7 years imprisonment (10 if victim is under 16 years old).


Act of indecency: s 61N.

  • Actus reus: committing an act of indecency with or towards a person, or inciting another do so.
    • Subsection 1 creates the offence for a victim/person being incited under 16, subsection 2 for people over 16.
    • "With" - requires two participants.
    • "Towards" - one person towards a non participant.
      • Can be within view, in the presence, or in some way towards - sight is not always necessary (over the phone may amount to an act of indecency): Barras; Chonka.
  • Mens rea: same as indecent assault.
  • Max penalty: 2 years if under 16, 18 months if over.


Aggravated Act of indecency : s 61O.

  • Actus reus:
    • (1) act of indecency when victim/person being incited is under 16 + circumstances of aggravation (same as indecent assault).
    • (1A) act of indecency when victim/person being incited is over 16 + circumstances of aggravation (same as indecent assault).
    • (2) Act of indecency when victim/person being incited is under 10.
    • (2A) act of indecency when victim/person being incited is under 16 + being filmed.
  • Mens rea: same as indecent assault.
  • Max penalty: 7 years if under 10, 5 years if under 16 (10 if being filmed), 3 years if over 16.
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