Previous Topic

Next Topic

Book Contents

Book Index

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

Click here to obtain a Word version of this document

This charge is designed for cases where consent is not available as a defence. Where consent is available, use Charge: Indecent Assault (Pre-1/1/92) – Consent in issue.

See the Indecent Assault (Pre-1/1/92) for information on when consent is not available as a defence.

This charge can be adapted where the accused is charged with indecent assault with aggravating circumstances. See Indecent Assault (Pre-1/1/92) for guidance.

The Elements

I must now direct you about the crime of indecent assault. To prove this crime, the prosecution must prove the following 3 elements beyond reasonable doubt:

One – that the accused touched[1] the complainant in the way alleged.

Two – that the touching was intentional.

Three - that the touching occurred in indecent circumstances.[2]

To protect children under the age of 16, Parliament has created a number of offences where consent is not relevant. This is one of those offences, so you do not need to consider the issue of whether or not NOC agreed to be touched in the way alleged.

I will now explain each of these elements in more detail.

Application of Force / Touching

The first element relates to what the accused did. S/he must have touched the complainant.

The touching does not need to be violent, or to cause any physical harm or injury. Any touching, no matter how slight, is enough.

In this case, the prosecution alleged that NOA touched NOC when s/he [insert relevant evidence]. The defence responded [insert relevant evidence].

For this first element to be met, you must be satisfied, beyond reasonable doubt, that NOA touched NOC in the way alleged by the prosecution.

Intention

The second element that the prosecution must prove is that the touching was intentional. That is, you must be satisfied that the accused touched the complainant deliberately, not accidentally.[3]

The touching does not need to have been done with any hostile or aggressive intent,[4] and it is not necessary that the accused intended to cause some kind of harm to the complainant.

[If relevant add the following: It is also not necessary that the purpose of the touching was for the accused’s sexual gratification.]

For this second element to be met, you need only find that the accused intended to touch the complainant in the way alleged by the prosecution.

Indecent circumstances

The third element that the prosecution must prove is that the touching occurred in indecent circumstances.

Indecent is an ordinary, everyday word, and it is for you to determine whether the circumstances were indecent.

However, the law says that indecent circumstances must involve a sexual connotation. This may arise from the area of the complainant’s body that was touched, from the part of the accused’s body that was used for the touching, or from the circumstances surrounding the touching. Beyond that requirement, the question of whether or not the circumstances were indecent is for you to decide.

It is possible for the touching itself to be indecent – for example, because of the area of the body touched by the accused. In such a case, there may be no need to find any additional indecent circumstances – the elements of touching and indecency may both be satisfied by the one act.

In this case, the prosecution alleged that the touching was indecent because [insert evidence]. [If relevant add: The defence responded [insert evidence]].

For this element to be met, you must be satisfied, beyond reasonable doubt, that the circumstances in which NOA touched NOC were indecent.

Summary

To summarise, before you can find NOA guilty of indecent assault the prosecution must prove each of the following elements to you beyond reasonable doubt:

One — that NOA touched NOC in the way alleged; and

Two — that NOA intended to touch NOC; and

Three — that the touching occurred in indecent circumstances.

If you find that any of these elements have not been proved beyond reasonable doubt, then you must find NOA not guilty of indecent assault.

Notes

[1] As most cases of indecent assault involve touching, this charge has been drafted accordingly. The offence can, however, be constituted by any direct or indirect application of force. In cases not involving touching, the wording should be modified appropriately.

[2] If a lawful excuse other than consent is raised, this matter should be identified for the jury, added to the list of elements as a matter the prosecution must disprove, and the charge adapted to include directions on that defence.

[3] This charge has been drafted based on the assumption that there need only be an intention to assault, not an intention to indecently assault.

[4] In relation to indecent assaults involving an actual touching, it is not necessary to establish any hostility over and above the actual circumstances of the indecency. In other circumstances (e.g. a threat to indecently assault) it may be necessary to show hostility.

Last updated: 12 April 2018

See Also

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

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