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

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Five elements the prosecution must prove beyond reasonable doubt:

1. The accused touched the complainant in the way alleged; and

2. The touching was intention; and

3. The touching occurred in indecent circumstances; and

4. There was no lawful justification for the touching; and

5. The accused was aware that the complainant was not or may not have been consenting at the time of the touching.

Assault

1. Did the accused touch the complainant in the way alleged?

If Yes, then go to 2

If No, then the accused is not guilty of indecent assault

Intention

2. Did the accused intend to touch the complainant in the way alleged?

If Yes, then go to 3

If No, then the accused is not guilty of indecent assault

Indecent circumstances

3. Did the touching occur in indecent circumstances?

Consider – Indecent circumstances requires a sexual connotation

If Yes, then go to 4

If No, then the accused is not guilty of indecent assault

Consent

4. Did the touching occur without the complainant’s consent?

If Yes, then go to 5

If No, then the accused is not guilty of indecent assault

The Accused’s State of Mind

5. At the time of the assault:

5.1 Was the accused aware that the complainant was not consenting?

If Yes, then go to 5.2

If No, then the accused is guilty of indecent assault (as long as you have answered questions 1, 2, 3 and 4)

5.2 Was the accused aware that the complainant might not be consenting?

If Yes, then the accused is guilty of indecent assault (as long as you have answered questions 1, 2, 3 and 4)

If No, then the accused is not guilty of indecent assault

Last updated: 12 September 2019

See Also

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

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