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Offences – Sexual Assault (Indecent Assault) 

s352 Criminal Code 1899 makes it an offence to sexually assault another person.

What the prosecution must prove.

The prosecution must prove reasonable doubt that:

1. The defendant assaulted the complainant;

2. The assault was unlawful; and,

3. The assault was indecent.

What it means.

In simple terms, an assault is a touching without consent.

The word “indecent” does not have a specific legal definition. It is what the community regards as indecent. Motive and context can be relevant to considering whether an act is indecent.

If the evidence suggests a defendant honestly and reasonably, but mistakenly, believed there was consent the prosecution must prove beyond reasonable doubt that was not the case.

The available defences.

Mistake of Fact as to consent.

The usual penalties.

The maximum penalty for the criminal offence of Indecent assault is 10 years imprisonment.

The maximum penalty is increased to 14 years imprisonment if the offence involves contact between mouth and genitals or anus.

The maximum penalty is life imprisonment if the offence involves being or pretending to be armed or being in company.

The maximum penalty is a poor numerical indicator of sentences usually imposed.  It plays a role in defining the relative seriousness of an offence. The maximum penalty is hardly ever imposed.

The offence can apply to a wide range of conduct from groping to a sexual assault not involving penetration. Penalties can range from fines to sentence of actual imprisonment,

Factors that affect the appropriate penalty include the nature of the assault, any associated violence, whether the offence is an isolated act or part of an ongoing course of conduct, and the age or other circumstances of the victim.

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