Indecent assault is an offence under Crimes Act 1958 s39.
The offence has the following five elements that the prosecution must prove beyond reasonable doubt. A person commits indecent assault if he or she:
Assaults another person;
Without lawful justification;
While being aware that the person is not consenting or might not be consenting or while not giving any thought to whether the person is not consenting or might not be consenting;
In indecent circumstances.
The first element that the prosecution must prove is that the accused assaulted another person. The term "assaults" is not defined for the purposes of s39. Charge: Indecent Assault is based on the assumption that s39 relies on the common law definition of assault.
At common law, assault is defined as any act done with the intention to cause the victim to apprehend immediate or unlawful violence (R v Venna  QB 421; Fagan v Commissioner of Metropolitan Police  1 QB 439; R v Court  AC 28).
In practice, the term assault is now often used synonymously with battery, which is the intentional application of force to another, either directly or indirectly (R v Holzer  VR 481; Fagan v Commissioner of Metropolitan Police  1 QB 439).
The force used need not be violent, and can be as slight as a mere touch (Collins v Wilcock 1 WLR 1172).
In the context of indecent assault involving an actual touching, it is not necessary to establish any "hostility" over and above the actual circumstances of the indecency (Boughey v R (1986) 161 CLR 10; Fitzgerald v Kennard (1995) 38 NSWLR 184).
Threats to assault
It is unclear whether indecent assault under s39 includes threats to indecently assault, in the same way that common law assault includes threats to assault.
The common law definition of assault includes threats to apply force, so long as those threats cause the victim to apprehend immediate or unlawful violence (R v Venna  QB 421; Fagan v Commissioner of Metropolitan Police  1 QB 439).
In New South Wales, it has been held that common law indecent assault includes threats to indecently assault (Fitzgerald v Kennard (1995) 38 NSWLR 184).
If threats to indecently assault are held to constitute an offence, Charge: Indecent Assault will need to be modified in appropriate cases.
It is somewhat unclear what intention is required in relation to indecent assault – whether there must merely be an intention to assault, or if there must be an intention to commit an indecent assault.
In relation to common law indecent assault, it has been held that the accused must have an intention to commit an indecent assault (R v Court  AC 28).
However, the wording of s39(2) states that a person commits an indecent assault if they "assault another person in indecent circumstances". This could be interpreted to mean that there need only be an intention to assault – so long as that assault occurred in the relevant circumstances. This is the interpretation used in this charge.
Consent is the most commonly relevant justification for indecent touching. However, other justifications relevant to common law assault may also be relied upon in unusual circumstances. See Common Law Assault.
"Consent" is defined in s36 of the Crimes Act 1958 to mean "free agreement". This definition of consent applies to all of the provisions in Subdivisions 8A to 8D of the Crimes Act (ss38-52).
In relation to s39, this definition of consent is relevant both to the question of whether the complainant "consented" to the conduct (thus providing a lawful justification for that conduct - the third element), and the accused’s mental state in respect of that "consent" (the fourth element).
Section 36 of the Crimes Act 1958 lists situations in which a person is regarded as not having given free agreement. This is not an exhaustive list.
Section 36 is not expressly drafted as a "deeming provision", but it is relatively clear that it must now be treated this way. This interpretation is supported for trials commenced on or after 1 January 2008 by s37AAA(b) and (c) which require juries to be directed about the effect of s36 in terms that assume that s36 is a deeming provision.
Section 36(a) states that submission in circumstances of "force or fear of force" is not consent. The only degree of force necessary is whatever is necessary to achieve the touching (see R v Bourke  VLR 289; R v Burles  VLR 392).
Section 36(b) states that submission because of "the fear of harm of any type to that person or someone else" is not consent. The section provides no assistance as to the nature of the harm contemplated. It may extend beyond physical or psychological injury, but that has not yet been determined.
Section 36(d) requires that a person is "so affected" by drugs or alcohol as to be incapable of free agreement. Mere impairment of judgement or reduction of inhibitions does not negate free agreement (R v Wrigley 9/2/1995 CA Vic). Note that intoxication can also be relevant to the issues of intention and mistaken belief (see Common Law Intoxication).
Section 36(e) states that a person does not consent if they are incapable of understanding the sexual nature of the act. The complainant’s understanding of the moral significance of the act is not relevant to this issue (R v Mobilio  1 VR 339; R v Eastwood  VSCA 42).
Section 36(e) relates to the complainant’s intellectual capacity. But "capacity to understand the sexual nature of the act" is not the only basis upon which a cognitive impairment may be relevant to consent. A person who understands the sexual nature of an act may be nevertheless incapable of freely agreeing to it, if that person is intellectually unable to make a refusal of consent or unable to understand his or her right to refuse consent (R v Mobilio  1 VR 339; R v Eastwood  VSCA 42).
In deciding whether a complainant who knew the nature and character of an act of sexual intercourse had the capacity to give real consent to it, the jury could have regard to such things as the complainant’s capacity to appreciate:
that most of the community draw a distinction in quality between sexual acts and other acts of intimacy; and
that a decision to consent or not involves questions of the morality or social acceptability of the conduct (R v Mobilio  1 VR 339; R v Eastwood  VSCA 42).
Section 36(g) says that a person does not consent where they have a mistaken belief that the sexual act was for either a medical or hygienic purpose. This section changed the pre-existing common law, which held that mistake as to the purpose of the act did not deprive consent of reality (R v Mobilio  1 VR 339. Note that the law stated in Mobilio as to capacity to consent is still correct).
There is nothing in s36 to deal with a situation where a woman is mistaken as to one of the characteristics of the accused, and it is this characteristic which leads her to consent. The common law holds that consent in such circumstances does not make the act unlawful (Papadimitropoulos v R (1957) 98 CLR 249).
The fact that a man has agreed to pay a specified sum in return for sexual contact and leaves without paying does not mean that consent was vitiated by fraud (R v Linekar  3 ALL ER 69).
Jury directions on consent
Sections 37 and 37AAA of the Crimes Act 1958 provide a framework of directions in respect of the complainant’s consent. These directions are mandatory where relevant to the facts in issue in a proceeding (Crimes Act 1958 s37(1)).
Where the alleged indecent assault is the immediate forerunner to an alleged rape, and the jury is to be directed on consent in relation to the alleged rape, they should also be directed about consent in relation to the alleged indecent assault (Paton v R  VSCA 72).
The Accused’s Awareness
The awareness element can be constituted by any one of three different mental states on the part of the accused:
An awareness that the complainant was not consenting (s39(2)(a);
An awareness that the complainant might not be consenting (s39(2)(a);
A failure to give any thought to whether or not the complainant was consenting ("inadvertence") (s39(2)(b).
Awareness of the real possibility of non-consent
The word "might" in the phrase "might not be consenting" suggests a test based on the "possibility" of non-consent. It does not suggest that the accused must have been aware that it was "probable" that the complainant was not consenting. However, the possibility of non-consent must be a real possibility, not just a theoretical possibility (R v Ev Costa 2/4/1997 CA Vic).
For offences committed after 1 January 2008 it is no defence for accused persons to assert that they were not aware that the complainant might not have been consenting to the sexual act because they had not given any thought to whether or not the complainant was consenting (Crimes Act 1958 s38(2)(a)(ii), s38(4)(b)(ii)).
Prior to this amendment it was uncertain whether or not "inadvertence" did provide a defence. On one view, inadvertence was a culpable state under the common law, and this continued for the statutory offences of rape and indecent assault – see DPP v Morgan  AC 182 and R v Tolmie (1995) 37 NSWLR 660. However, the Crimes Amendment (Rape) Bill 2007 was enacted on the basis that this mental state was not previously culpable (see Attorney-General Rob Hulls, Second Reading Speech, Crimes Amendment (Rape) Bill 2007). The charge-book charges reflect this view. If non-advertence was a culpable mental state even prior to the amendment, and it is an issue in a pre-amendment case, the charge will need to be modified.
Jury directions on the accused’s awareness
Sections 37 and 37AA of the Crimes Act 1958 provide a framework of directions in respect of the accused’s awareness of the complainant’s state of consent. These directions are mandatory where relevant to the facts in issue in a proceeding (Crimes Act 1958 s37(1)).
"Indecent" has been held to be an ordinary word in the English language. It is for the jury to decide whether the facts of a case amount to indecency (R v Nazif  NZLR 122; Curtis v R  VSCA 102).
The issue of whether an assault occurred in "indecent circumstances" is an objective one, to be assessed according to community standards. "Indecent" conduct is conduct which would be considered indecent by "right minded people", or which is "so offensive to contemporary standards of modesty or decency as to be indecent" (R v Court  AC 28; Curtis v R  VSCA 102). 
There must be a "sexual connotation" for an act to be considered indecent (R v Court  AC 28; R v RL  VSCA 95; Sabet v R  VSCA 124).
An act may have a sexual connotation due to the body area used by the accused (e.g. genitals, anus, breasts). In certain circumstances, an act that does not invovle one of these body areas may also come to have a sexual connotation due to the accused’s motive (R v Harkin (1989) 38 A Crim R 296; Sabet v R  VSCA 124; Curtis v R  VSCA 102).
Relevance of the accused’s motive to "indecency"
If an act has a clear sexual connotation due to the involvement of the genitals, anus or breasts, the accused’s motive will be irrelevant in determining whethe the assault occurred in indecent circumstances. A clearly indecent act cannot become decent due to a decent motive (R v Harkin (1989) 38 A Crim R 296; Sabet v R  VSCA 124. But cf. R v Court  AC 28).
Similarly, where an act is incapable of having a sexual connotation (e.g. removing a person’s shoe), the accused’s motive is irrelevant. An indecent motive cannot turn an innocuous act into an indecent assault (R v George  Crim LR 52; R v Court  AC 28).
However, where the alleged act is equivocal, in the sense that it may or may not have a sexual connotation (e.g., a kiss on the cheek), the accused’s motive may be relevant to determining whether it had such a connotation (Sabet v R  VSCA 124; Curtis v R  VSCA 102; R v RL  VSCA 95; R v Court  AC 28).
Such an act will have a sexual connotation if it was committed for the purpose of obtaining sexual gratification (Sabet v R  VSCA 124; R v RL  VSCA 95; R v Court  AC 28).
Where it is not clear whether an assault occurred in indecent circumstances or not, then it must be shown that the accused intended it to have a sexual connotation. Proof of the accused’s motive is relevant in determining this issue (R v Court  AC 28).
In determining whether an act has a sexual connotation, the jury may consider a range of factors including:
The relationship of the accused to victim (e.g. were they relatives, friends or complete strangers);
How the accused had come to embark on this conduct; and
Why the accused was behaving in that way (R v Court  AC 28).
Concurrency of Elements
The assault must have been indecent at the time it was committed (Sabet v R  VSCA 124).
Consequently, the prosecution must prove that when the assault was committed, it ws directly accompanied by either:
A sexual connotation; or
An intention to obtain sexual gratification (Sabet v R  VSCA 124. See also R v Court  AC 28).
It is not necessary that there be an assault as well as an independent act of indecency. Any assault which is itself an act of indecency, or that is of such a character as to involve an act of indecency, is sufficient (Fitzgerald v Kennard (1995) 38 NSWLR 184).
 Other ways in which this requirement has been expressed include "unbecoming or offensive to common propriety", "an affront to modesty" or "offending the modesty of the average person" (see Sabet v R  VSCA 124)