(Excerpt from a subheading of "SEXUAL OFFENSES". Full article may be read at http://law.anu.edu.au/criminet/trape.html.)

Two questions arise with all these offences dealing with indecency. First, what constitutes an act of indecency. Secondly, must the defendant know that the act committed is indecent. Must the defendant act with an indecent purpose? In Court [1988] 2 All ER 221, the English House of Lords considered this question. The defendant spanked a 12 year old girl 12 times across her bottom. When asked by the police why he did it, he replied "I don't know, buttock fetish". He was convicted of indecent assault and the questions on the appeal related to the meaning of indecency and whether the defendant had to have an indecent purpose or intention. Lord Ackner, with whom the majority agreed made the following points. On a charge of indecent assault the prosecution must prove (1) the accused intentionally assaulted the victim (2) that the assault, or the assault and the circumstances accompanying it, are capable of being considered by right minded persons as indecent (3) that the accused intended to commit such an assault as is referred in (2). The appeal was dismissed. The Lords held that on these facts the assault was capable of amounting to an indecent assault. The prosecution proved that the defendant had an intention to commit an indecent assault. His explanation demonstrated that his intention was indecent. Lord Goff dissented. He took the view that intent to obtain sexual gratification should not be an element of the offence, and that proof of indecent intent is not required. He pointed out that under the majority's view, a man who forcibly undresses a woman in public just because he is a misogynist, or because he wants to embarrass her, or because he is mischievous, is not guilty of indecent assault.[emphasis added]

The difficulty is clearly the notion of the right-minded person determining the limits of decency. Lord Ackner defined indecency as conduct which the right-minded person would consider indecent. It was for the jury to decide whether what occurred was so offensive to contemporary standards of modesty or privacy to be indecent. This means that an assault which occurs in circumstances which the right-minded person would not regard as indecent is not an indecent assault, however indecent the purpose of the offender. Indecency would essentially be a question for the jury to determine on the facts of each case.

Harkin (1989) 38 A Crim R 296 is an Australian decision concerning the meaning of indecency. The New South Wales Court of Criminal Appeal basically endorsed the approach in Court with some qualifications. The defendant was a family friend of two young girls. The girls came to stay with him during the school holidays. The defendant took the girls, who were both 11, for a drive in his car to a nearby bush track. Each girl then had a turn at steering the car whilst sitting on his lap. While one of the girls was steering, the defendant fondled her breasts and vagina. He fondled the breasts of the second girl in a similar fashion. The trial judge directed that indecency is to be determined by the ordinary standards of morality of respectable people within the community. The defendant was convicted. On appeal to the New South Wales Court of Criminal Appeal, the defence claimed that it was a misdirection to use morality as the standard to determine indecency. The court rejected this argument, it would not be a misdirection to say that indecency is to be determined by the ordinary standards of morality of respectable people within the Community. The New South Wales Court of Criminal Appeal expressly approved the definition used by Lord Ackner in Court: "whether the right minded person would consider the conduct indecent".

The second ground for appeal was that the judge had not directed that the defendant's acts were intended by him for sexual gratification. The Court held that for indecent assault the assault must have a sexual connotation. If the defendant intentionally touched the breast of the girl that is sufficient to be an assault with the necessary sexual connotation and render it indecent. The purpose or motive of the defendant is irrelevant. The intentional doing of the act (voluntary) is sufficient. However, where the sexual connotation of the alleged assault is equivocal, then in order to be an indecent assault it must be accompanied by an intention to obtain sexual gratification. The judgment then draws a distinction between acts of indecency which are unequivocal (not requiring indecent intent) and acts which are equivocal (which indecent if the defendant has an indecent intent). This is certainly a more refined approach to the question of indecency proposed by the House of Lords in Court.

The laws governing child sexual assault are also found in this division of the Crimes Act. Section 66A prohibits sexual intercourse with a young person under the age of 10. The offence is punished more severely than rape, and note that lack of consent is not an ingredient of the offence see s77. Neither does the prosecution have to prove knowledge that the person is under age. Attempting to commit this offence is a separate crime: s66B. Sexual intercourse with a child between 10-16 is an offence under s66C, as is an attempt to do so: s66D. With respect to the later two offences, mistaken belief that the child is over 16 may be raised as a defence: s77(2). . .

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