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7.3.7 - Indecent assault (Pre-1/1/92)

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Overview

  1. This topic concerns the offence of indecent assault as it existed before 1 January 1992.
  2. This topic should be read in conjunction with Indecent assault, which describe the offence as in force from 1 January 1992 onwards. The focus of this topic is on the differences that applied at various times to the offence of indecent assault.
  3. Prior to 1 March 1981, indecent assault could only be committed on a woman or girl (Crimes Act 1958 s55, as in force before 1 March 1981).
  4. From 1 March 1981, the offence became gender-neutral. In addition, an aggravated form of offence was introduced (Crimes Act 1958 ss 44, 46 as in force from 1 March 1981 to 4 August 1991; Crimes Act 1958 ss38, 42, 43, as in force from 5 August 1991 to 31 December 1991).

    Consent

  5. Before 1 March 1981, the Crimes Act 1958 specified that for a person under 16, consent is not a defence to indecent assault (Crimes Act 1958 s55(2), as in force before 1 March 1981).
  6. From 1 March 1981, the Crimes Act 1958 provided that consent was no defence unless:

    (a) the accused was, or believed on reasonable grounds that he was, married to the person;

    (b) the accused believed on reasonable grounds that the person was of or above the age of sixteen years; or

    (c) the accused was not more than two years older than the person (Crimes Act 1958 s44(3), as in force from 1 March 1981 to 8 August 1991).

  7. Without these provisions, consent is a defence to a charge of indecent assault, as it would be in a charge of common assault (R v Williamson [1969] VR 696, 968).
  8. These provisions also have the effect that, where consent is excluded, common assault is not available as an alternative verdict to a charge of indecent assault (R v Williamson [1969] VR 696, 698).
  9. Where consent is an element of indecent assault, the prosecution must also prove that the accused was aware that the complainant was not consenting or realised that the complainant might not be consenting (see R v Whelan [1973] VR 268; R v Trotter, Unreported, Supreme Court of Victoria Court of Criminal Appeal, 5 December 1985). For further information about awareness of non-consent at common law, see Rape and Aggravated Rape (Pre-1/1/92).
  10. In the case of a complainant under 16 and a charge alleging an offence from 1 March 1981 to 4 August 1991, the accused has an evidentiary burden to raise the issue of one of the three limbs of s44(3). Once that evidentiary burden is met, the onus is on the prosecution to prove that the complainant did not consent and the accused knew that the complainant was not, or believed that the complainant might not be, consenting (see R v Deblasis & Deblasis (2007) 19 VR 128; c.f. R v Trotter, Unreported, Supreme Court of Victoria Court of Criminal Appeal, 5 December 1985).
  11. For offences committed between 5 August 1991 and 31 December 1991, the general offence of indecent assault did not contain a clause excluding consent as a defence. Instead, the provision excluding consent is found in the specific offences of sexual offences against children, including the offence of committing an indecent act with or in the presence of a child under 16 (Crimes Act 1958 s47, as in force between 5 August 1991 and 31 December 1991).

    Interaction between rape and indecent assault

  12. Changes in the definition of sexual penetration for the purposes of rape over time have affected whether conduct can be charged as rape or indecent assault.
  13. Before 1 March 1981, sexual penetration for the purpose of rape only consisted of penetration of a vagina by a penis. Other conduct that is now treated as sexual penetration, including digital-vaginal, digital-anal, penile-anal and penile-oral penetration, could only be charged as indecent assault, buggery or gross indecency (see R v Daly [1968] VR 257; R v Hornbuckle [1945] VLR 281).
  14. Between 1 March 1981 and 4 August 1991, the definition of rape was expanded to include:
  15. The definition of rape was further expanded from 5 August 1991 to 31 December 1991 to include the introduction of a part of the body other than the penis into the vagina or anus of another person (Crimes Act 1958 s36, as in force between 5 August 1991 and 31 December 1991).
  16. These expansions to the definition of rape have correspondingly narrowed the range of conduct that should be charged as indecent assault. See Rape and Aggravated Rape (Pre-1/1/92) for more information on the changing definition of rape and sexual penetration.

    Application of the Jury Directions Act 2015

  17. The majority of the Jury Directions Act 2015 applies to trials for historical indecent assault (Jury Directions Act 2015, Schedule 1, clause 1(1)).
  18. However, the provisions in Division 1 of Part 5, which contain directions on consent and belief in consent, only apply to offences alleged to have been committed on or after the commencement of that Division (Jury Directions Act 2015, Schedule 1, clause 1(2)). Those provisions will therefore not apply to trials for historical indecent assault.

    Indecent assault with aggravating circumstances

  19. The offence of indecent assault with aggravating circumstances existed between 1 March 1981 and 31 December 1991.
  20. The accused can be found guilty of this offence in two ways:

    Jury Determination

  21. "Indecent assault with aggravating circumstances" is a separate offence from "indecent assault". If the prosecution charges the accused with the aggravated offence, the judge must direct the jury about its elements (subject to the power of the judge to direct a verdict of indecent assault with aggravating circumstances: see below) (Crimes Act 1958 s44).
  22. The offence consists of all the elements of indecent assault, along with an additional element that the offence was committed in one of the following aggravating circumstances:
    1. During the commission of the offence, or immediately before or after it, and at or in the vicinity of the place where the offence was committed, the offender inflicted serious personal violence on the victim or another person;
    2. The offender had an offensive weapon with him or her;
    3. During the commission of the offence, or immediately before or after it, the offender did an act which was likely to seriously and substantially degrade or humiliate the victim; or
    4. During the commission of the offence, or immediately before or after it, the offender was aided or abetted by another person who was present at, or in the vicinity of, the place where the offence was committed (Crimes Act 1958 ss45, 46).
  23. The term "offensive weapon" means an offensive weapon, firearm, imitation firearm, explosive or imitation explosive, as defined in s77 of the Act (Crimes Act 1958 ss45, 46).
  24. See Aggravated Burglary for further information concerning the meaning of "offensive weapon", as well as the requirement that the accused had the weapon "with" him or her.

    Directed Verdict

  25. Where the accused is found guilty of indecent assault, the judge may direct that he or she is deemed to have been found guilty of indecent assault with aggravating circumstances if the judge is satisfied that the accused has previously been convicted of one of the following offences:
  26. The power to direct a deemed verdict of indecent assault with aggravating circumstances applies even if the accused pleaded guilty. It is not limited to a finding of guilt following a trial (R v Symons [1981] VR 297; R v Snabel, VSC, 2/12/1982).

    Notes

[1] Prior to 1 March 1981, s44(2) of the Crimes Act 1958 allowed the jury on a charge of rape to return a verdict of rape with mitigating circumstances, if satisfied that the accused committed the offence in circumstances of mitigation.

Last updated: 12 April 2018

In This Section

7.3.7.1 – Charge: Indecent Assault (Pre-1/1/92) – Consent not in issue

7.3.7.2 – Checklist: Indecent assault (Pre-1/1/92) – Consent not in issue

7.3.7.3 – Charge: Indecent Assault (Pre-1/1/92) – Consent in issue

7.3.7.4 – Checklist: Indecent assault (Pre-1/1/92) – Consent in issue

See Also

7.3 - Sexual Offences

7.3.1 - Consent and Consent-related Fault Element

7.3.2 - Rape (From 1/1/92)

7.3.3 - Rape and Aggravated Rape (Pre-1/1/92)

7.3.4 - Assault with Intent to Rape (Pre-1/7/15)

7.3.5 - Sexual Assault (From 1/7/15)

7.3.6 - Indecent Assault (1/1/92 - 30/6/15)

7.3.8 - Incest (From 1/7/17)

7.3.9 - Incest (Pre-1/7/17)

7.3.10 - Sexual penetration of a child under 12 (From 1/7/17)

7.3.11 - Sexual penetration of a child under 16 (From 1/7/17)

7.3.12 - Sexual penetration of a child under 16 (1/1/92 – 30/6/17)

7.3.13 - Sexual Penetration of a 16 or 17 Year Old Child (From 1/7/17)

7.3.14 - Sexual penetration of a 16 or 17 year old child (1/1/92 – 30/6/17)

7.3.15 - Sexual Assault of a child under 16 (From 1/7/17)

7.3.16 - Indecent Act with a Child under 16 (1/1/92 – 30/6/17)

7.3.17 - Sexual Assault of a child aged 16 or 17 under care, supervision or authority (From 1/7/17)

7.3.18 - Indecent Act with a 16 or 17 year old Child (1/12/06 – 30/6/17)

7.3.19 - Indecent act with a 16 year old child (5/8/91 – 30/11/06)

7.3.20 - Sexual Activity in the presence of a child under 16 (From 1/7/17)

7.3.21 - Sexual Activity in the presence of a child aged 16 or 17 under care, supervision or authority (From 1/7/17)

7.3.22 - Persistent sexual abuse of a child (From 1/7/17)

7.3.23 - Sexual Offences Against Children (Pre-1/1/92)

7.3.24 - Production of Child Abuse Material

7.3.25 - Distributing Child Abuse Material

7.3.26 - Production of Child Pornography

7.3.27 - Possessing Child Abuse Material

7.3.28 - Possession of Child Pornography