7.3.2 Indecent Assault and Sexual Assault 1

7.3.2 – Indecent Assault and Sexual Assault[1]

7.3.2.1B – Bench Notes – Sexual Assault (post 1/7/2015 offences)

These Bench Notes relate to sexual assault offences committed on or after 1 July 2015.

For indecent assault offences committed before 1 July 2015, see Bench Notes: Indecent Assault - pre-1 July 2015 offences.

Elements

1.  Sexual assault is an offence under Crimes Act 1958 s40.

2.  The offence has the following four elements that the prosecution must prove beyond reasonable doubt. A person (A) commits the offence of sexual assault if he or she:

i)  Intentionally touches another person (B);

ii)  The touching is sexual;

iii)  B does not consent to the touching; and

iv)  A does not reasonably believe that B consents to the touching.

3.  Compelled sexual assault is a separate offence under s41. Many of the elements of sexual assault are also relevant to compelled sexual assault, including the meanings of sexual touching, consent and reasonable belief in consent. See “Compelled Sexual Assault” below.

Commencement information

4.  The offence of sexual assault in Crimes Act 1958 s40 commenced operation on 1 July 2015. As a new offence, it only applies to conduct committed on or after 1 July.

5.  Prior to 1 July 2015, similar conduct was covered by the offence of indecent assault (see Crimes Act 1958 s39)

Intentional Touching

6.  The first element that the prosecution must prove is that the accused intentionally touched another person. The term “touching” is defined in Crimes Act 1958 s35B as touching that may be done:

(a)  with any part of the body; or

(b)  with anything else; or

(c)  through anything, including anything worn by the person doing the touching or by the person touched.

7.  Before 1 July 2015, the offence of indecent assault relied on the common law definition of “assault”. Assault was defined as any act done with the intention to cause the victim to apprehend immediate or unlawful violence (R v Venna [1976] QB 421; Fagan v Metropolitan Police [1969] 1 QB 439; R v Court [1989] AC 28).

8.  The exact intention required in relation to indecent assault was somewhat unclear – whether there must merely have been an intention to assault, or whether an intention to commit an indecent assault was required.

9.  In relation to common law indecent assault, it had been held that the accused must have had an intention to commit an indecent assault (R v Court [1989] AC 28).

10.  However, “assault” forms no part of the elements of the current offence.

11.  As a result, the fault element for the first element is basic or general intention. Where relevant, the prosecution must prove that the touching was intentional in the sense that it was deliberate rather than inadvertent or accidental.

Sexual touching

12.  Touching can be “sexual” because of:

(a) the area of the body that is touched or used in the touching, including (but not limited to) the genital or anal region, the buttocks or, in the case of a female, or a person who identifies as female, the breasts; or

(b) the fact that the person doing the touching seeks or gets sexual arousal or sexual gratification from the touching; or

(c) any other aspect of the touching, including the circumstances in which it is done (Crimes Act 1958 s35B(2)).

13.  The first limb of s35B(2) is consistent with the common law on the previous offence of indecent assault, which held that an act may have had a sexual connotation due to the body area used by the accused (e.g. genitals, anus, breasts), or due to the accused’s motive (R v Harkin (1989) 38 A Crim R 296; Sabet v R [2011] VSCA 124; Curtis v R [2011] VSCA 102).

14.  In determining whether an act had a sexual connotation, at common law the jury could consider a range of factors including:

·  The relationship of the accused to victim (e.g. were they relatives, friends or complete strangers);

·  How the accused had come to embark on this conduct; and

·  Why the accused was behaving in that way (R v Court [1989] AC 28).

15.  These principles may continue to be relevant in determining whether touching was “sexual” for the purposes of s40 sexual assault.

16.  However, the previous distinction between acts supposedly incapable of having a sexual connotation (e.g. removing a person’s shoe) and acts equivocal in the sense that they may or may not have a sexual connotation (e.g., a kiss on the cheek), depending on the accused’s motive, is likely no longer relevant (On this distinction, see R v George [1956] Crim LR 52; R v Court [1989] AC 28;cf Sabet v R [2011] VSCA 124; Curtis v R [2011] VSCA 102; R v RL [2009] VSCA 95; R v Court [1989] AC 28).

17.  That is because the current s35B(2) definition states that “touching” may be sexual because the person touching seeks or gets sexual arousal or sexual gratification from it, with no other qualifications regarding the nature of the touching itself.

18.  As with the earlier offence of indecent assault, there is no requirement that the touching involved any “hostility” over and above sexual nature of the touching (Boughey v R (1986) 161 CLR 10; Fitzgerald v Kennard (1995) 84 A Crim R 333).

Honest and Reasonable Mistake

19.  The Act states that it is no defence that the accused had an honest and reasonable belief that the touching was not sexual (Crimes Act 1958 s40(3)). This excludes the general criminal defence of honest and reasonable mistake of fact with respect to the sexual nature of the touching.

20.  The effect of this provision appears to be that the accused’s belief can make a touching sexual (such as where he or she seeks or gets sexual gratification from the touching), but the accused’s belief is not capable of operating in an exculpatory manner.

Without Consent

21.  “Consent” is defined in s36 of the Crimes Act 1958 to mean “free agreement”.

22.  This definition of consent is relevant both to the question of whether the complainant consented to the conduct (the third element), and the accused’s mental state in respect of that consent (the fourth element).

23.  Section 36(2) of the Crimes Act 1958 lists situations in which a person is regarded as not having given free agreement. This is not an exhaustive list.

24.  Section 36(2) is not expressly drafted as a “deeming provision”, but it is relatively clear that it must now be treated this way. This interpretation is supported by Jury Directions Act 2015 s46(4)(b) which require juries to be directed about the effect of s36(2) in terms that assume that it is a deeming provision.

25.  For a full discussion of this topic see Bench Notes: Consent and reasonable belief in consent (1 July 2015 onwards). For the full text of these provisions as amended at different points in time see [7.3.A – Legislation – Sexual Offences General Provisions].

No Reasonable Belief in Consent

26.  The fourth element is that the accused “does not reasonably believe that [the complainant] consents to taking part in the sexual act” (Crimes Act 1958, s40(1)(d)).

27.  This fault element will be satisfied by any one of the following mental states:

i)  The accused believed that the complainant was not consenting.

ii)  The accused did not believe the complainant was consenting. This includes circumstances where the accused gave no thought as to whether the complainant was consenting.

iii)  The accused believed the complainant was consenting, but his/her belief was not reasonable in the circumstances.

28.  This element introduces objectivity into the fault criteria for sexual assault (Crimes Amendment (Sexual Offences and Other Matters) Bill 2014 Explanatory Memo).

29.  This element is explained in more detail in Bench Notes: Consent and reasonable belief in consent (1 July 2015 onwards).

Compelled Sexual Assault

30.  “Sexual assault by compelling sexual touching” (compelled sexual assault) is a separate offence contained in s41.

31.  The elements of compelled sexual assault are as follows (s41(1)):

i)  The accused (A) intentionally causes another person (B)—

·  To touch A; or

·  To touch themselves, or

·  To touch another person (C) or an animal, or

·  To be touched by C or by an animal; and

ii)  The touching is sexual; and

iii)  B does not consent to the touching; and

iv)  A does not reasonably believe that B consents to the touching.

32.  The elements of the offence are similar to those of sexual assault, but rather than the accused intentionally touching the complainant, the accused intentionally causes the complainant to sexually touch either the accused, the complainant him/herself, a third person, or an animal or be touched by a third person or an animal (s41(1)(a)).

33.  The accused will have committed the offence of compelled sexual assault in relation to the person who s/he causes to do the touching, not the person touched. Where the accused causes the complainant to touch a third person, the accused may also have committed sexual assault simpliciter of that third person, assuming the other elements of that offence are met (s35B(2)).

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[1] This document was last updated on 1 July 2017.