Indecent assault under Australian criminal law refers to an unlawful physical act against another person, carried out in circumstances that are considered indecent or of a sexual nature. This offence typically involves an element of assault combined with conduct that is sexually inappropriate or offensive.

The prosecution must establish that:

1. An assault occurred, 
2. The act involved indecency, 
3. The alleged victim did not consent, and 
4. The accused either knew there was no consent or acted recklessly as to whether consent was given.
   

Essential Elements

• Assault: Any unwanted physical contact or threat of contact, regardless of whether it causes harm. 
• Indecency: Behaviour with a sexual undertone, often involving private or intimate body parts, which breaches accepted community standards. 
• Lack of Consent: The act must have occurred without the victim’s free and voluntary agreement. 
• Recklessness or Knowledge: The offender must have been either aware that the victim did not consent or acted without considering whether consent was present.
  

Aggravating Circumstances

The offence is considered aggravated in situations such as:

• The victim is under a specific age (typically under 16 or under 14, depending on the jurisdiction), 
• The assault involves family or domestic violence. 

Aggravated offences carry more severe penalties than basic indecent assault charges.

Penalties by Jurisdiction

• New South Wales (NSW): Previously governed by Section 61L of the Crimes Act 1900, now replaced with the offence of sexual touching for incidents occurring on or after December 1, 2018. The maximum penalty for indecent assault is 5 years; aggravated versions may attract up to 10 years. 
• South Australia (SA): Under Section 56 of the Criminal Law Consolidation Act 1935, penalties range from 8 years for basic offences to 15 years for aggravated offences involving victims under 14. 
• Queensland (Qld): Governed by Section 352 of the Criminal Code 1899, with a maximum penalty of 10 years imprisonment. 
• Victoria (Vic): Formerly covered by the Crimes Act 1958, which has since replaced indecent assault with sexual assault after June 29, 2015.
  

Alternative sentencing options may include fines, community correction orders, or conditional release, depending on the severity and circumstances of the offence.

Legal Defences

• Consent: A valid defence if the accused can show that the victim freely agreed to the act. 
• Reasonable Belief: The accused may argue they had a genuine and reasonable belief that the victim was consenting. 
• Mistaken Identity or Nature of the Act: If the victim was deceived about who was performing the act or what the act involved, consent may be deemed invalid.

Indecent assault is treated seriously under Australian law and is defined by the presence of non-consensual, sexually suggestive behaviour. Laws and penalties vary by state, and legal updates.

About Post Author

Brian Walker

B.Acc., GradDipLegPrac, Juris Dr
Barrister & Accountant.
Former Criminal Defence Solicitor. Former Federal Prosecutor for the Commonwealth Director of Public Prosecutions prosecuting Commonwealth crimes relating to drugs and child exploitation. Former Australian Federal Police member litigating proceeds of crime matters. Former Australian Taxation Office employee investigating offshore tax evasion matters.

Post Created by Jesslyn Duong-Yuan, paralegal.

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