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This charge is designed for cases where consent is available as a defence. Where consent is not available, use Charge: Indecent Assault (Pre-1/1/92) – Consent not 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 the Indecent Assault (Pre-1/1/92) for guidance.
I must now direct you about the crime of indecent assault. To prove this crime, the prosecution must prove the following 5 elements beyond reasonable doubt:
One – that the accused touched the complainant in the way alleged.
Two – that the touching was intentional.
Three - that the touching occurred in indecent circumstances.
Four – that there was no lawful justification for the touching, such as the consent of the complainant.
Five – that at the time of the touching the accused was either:
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.
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.
The touching does not need to have been done with any hostile or aggressive intent, 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.
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.
Lack of Consent (Lawful Justification)
The fourth element that must be proven by the prosecution is that the touching occurred without any lawful justification. In this case, that means that the complainant was touched without his/her consent.
Consent is a state of mind. The law says that consent means free agreement. So NOC will not have consented to the touching if s/he did not freely agree to be touched.
The law identifies a number of circumstances where the complainant is deemed not to freely agree, or consent, to be touched. These circumstances include [insert relevant section(s) from the following and apply to the evidence:
(a) the person submits because of force or the fear of force to that person or someone else;
(b) the person submits because of the fear of harm of any type to that person or someone else;
(c) the person submits because he or she is unlawfully detained;
(d) the person is asleep, unconscious, or so affected by alcohol or another drug as to be incapable of freely agreeing;
(e) the person is incapable of understanding the sexual nature of the act;
(f) the person is mistaken about the sexual nature of the act or the identity of the person;
(g) the person mistakenly believes that the act is for medical or hygienic purposes.]
If you are satisfied beyond reasonable doubt that one of these circumstances existed in relation to NOC, you must find that s/he was not consenting. However, you do not need to consider this question only by reference to these particular circumstances. If you are satisfied beyond reasonable doubt on any basis arising from the evidence that the complainant was not consenting, then this element will be proven.
[If there is evidence the complainant did not indicate agreement, add the shaded section if relevant.]
The law also says that the fact that a person did not say or do anything to indicate free agreement to a sexual act at the time at which the act took place is enough to show that the act took place without that person’s free agreement.
This means that if you accept that NOC did not say or do anything to indicate free agreement to be touched at the time of that act, you may find on that basis that s/he did not consent to that act.
[Where evidence is given about the absence of physical resistance, lack of physical injury or past consensual sex, add the following shaded section if relevant to the facts in issue.]
The law also says the complainant is not to be regarded as having freely agreed just because:
[if relevant] the complainant did not protest or physically resist the accused;
[if relevant] the complainant did not sustain physical injury;
[if relevant] the complainant agreed to engage in another sexual act on that occasion with the accused or with any other person, or that s/he agreed to engage in another sexual act with the accused or another person on an earlier occasion.
However, these are relevant factors for you to consider. You must consider the action or lack of action of NOC, together with all the surrounding circumstances, in order to decide whether the prosecution has proven beyond reasonable doubt that NOC did not consent.
In determining whether NOC did not freely agree to be touched, you must consider all of the relevant evidence, including what s/he is alleged to have said and done at the time of the alleged touching, as well as the evidence s/he gave in court about [his/her] state of mind at that time. You can also consider what s/he did not say or do at the time of the alleged touching.
In this case, the prosecution alleged that NOC did not consent. [Refer to evidence supporting the prosecution case]. The defence responded [insert relevant evidence].
It is important that you remember that it is not for the accused to prove to you that the complainant consented. For this element to be satisfied, the prosecution must prove to you, beyond reasonable doubt, that the complainant did not consent.
State of Mind of the Accused
The fifth element relates to the accused’s state of mind about the complainant’s consent. The prosecution must prove beyond reasonable doubt that at the time of the touching the accused was either:
If the prosecution fails to prove to you beyond reasonable doubt that NOA had one of these states of mind about the complainant’s consent, then you must find this element not proven, and you must find NOA not guilty of this offence.
Belief in Consent
[If evidence is led or an assertion is made that the accused believed that the complainant was consenting, add one of the directions in Charge: Belief in consent]
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.
Four — that NOC did not consent to the touching; and
Five — that at the time of the touching NOA was either:
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.
 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.
A threat to indecently assault may also constitute an indecent assault: see Indecent assault. If this is the case, this charge will need to be modified in trials involving such threats.
 This charge only includes the lawful justification of consent. Directions should also be given on any other lawful justifications that are in issue.
 This charge has been drafted based on the assumption that there need only be an intention to assault, not an intention to indecently assault.
 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.
 If this element is not in issue, it will generally be sufficient to state that conclusion at this point and elaborate no further.
Last updated: 12 April 2018