Bum-Pinching Isn’t Indecent by Today’s Standards

A Western Australian Supreme Court justice has upheld the decision of a magistrate, who ruled that a 48-year-old police officer who pinched a woman on the behind did not indecently assault her, as prevailing social attitudes don’t consider this act indecent.

WA police officer Andrew Ramsden had been participating in a charity basketball event at Wanangkura Stadium in South Hedland on 8 December 2017, when, at the end of the event, he posed for a team photo standing to the right of a woman, whose name has been withheld.

As the photo was about to be taken, Ramsden, who was standing slightly behind the woman, reached in with his right hand and pinched her on her right buttock. She jumped forward in surprise, and he said something to the effect of, “I hope you don’t take that the wrong way.”

The police officer was charged with indecent assault contrary to section 323 of the Criminal Code (WA). The offence carries a maximum penalty of 5 years imprisonment or if dealt with summarily, it can lead to 2 years behind bars and/or a fine of $24,000.

Magistrate Michelle Ridley subsequently found Ramsden not guilty, as she reasoned that in an era of twerking and easy access to pornography a pinch on the bottom doesn’t raise an eyebrow. And her decision has left many questioning attitudes within the judiciary at the time of #MeToo.

A backwards precedent

“The judgement, now that it is from the Supreme Court, entrenches a view, at least in relation to future possible prosecutions in WA, that the objectification of women is OK,” said Professor Heather Douglas, the deputy dean of research at Queensland University’s TC Beirne School of Law.

The professor explained that the crux of the matter is that the term “indecent” is not defined in the local legislation, which left the magistrate to go on a “fact finder to determine” what community standards are regarding decency.

“In this case, the issue is not so much that the assaulted person’s views were overlooked,” Professor Douglas told Sydney Criminal Lawyers, “but that the magistrate has determined that in the community, this type of behaviour is not regarded as indecent.”

And while the magistrate came to this conclusion, Professor Douglas points out that the fact the police officer “who assaulted the woman” was concerned about how she would take it shows there’s a good chance she would’ve been uncomfortable, which is indicative of “community expectations”.

It all depends on the manner

WA Supreme Court Justice Jennifer Smith outlined in the full findings of the appeal the reasoning of the magistrate, which led her to determine that the pinching of the woman’s behind was not “contrary to community standards of decency”.

Magistrate Ridley set out that it’s not an established principle that “grabbing” a behind is always indecent, whereas the legal authorities and community standards do find that touching some parts of the body – such as the breasts or the testicles – is, and always has been, inherently indecent.

When it comes to the touching of the buttocks, indecency depends on the manner in which it’s done. And the magistrate rejected the prosecution’s assertion that these days, a man touching a woman’s behind is inherently indecent, when in the past it may not have been.

A lecherous era

“In the 70s and 80s, women were regularly oversexualised, breast groping and a pinch on the bottom was naughty and seen as overtly sexual and inappropriate for that time,” Magistrate Ridley reasoned.

“In 2017, in an era of ‘twerking’… and grinding, simulated sex and easy access to pornography, the thought of a pinch on the bottom is almost a reference to a more genteel time,” she continued, adding that nowadays, bottom-pinching is inappropriate, but hardly warrants a mention.

As an example, the magistrate cited sportspeople slapping and tapping each other on the behind during games. She further asserted that there’s more touching going on between men and women than ever before. And to tap someone on the buttock hardly “howls of immodesty or indecency”.

The decision upheld

The unnamed woman appealed the decision to the WA Supreme Court on 5 March. She did so on the ground that the magistrate had made errors in failing to find the assault was on a part of the body that inherently has a sexual connotation and that it was offensive given community standards.

Justice Jennifer Smith agreed with the magistrate in regard to whether touching a person on the buttocks is indecent. Her Honour found that the indecency of such an act depends on its “motive and purpose”, as well as the “context of the surrounding circumstances”.

On the question of community standards, Justice Smith also sided with the magistrate, whom she believed was best placed to make the determination that the touching was not indecent given the “prevailing community standards of decency and propriety”.

On the #MeToo movement

Justice Smith said that the woman’s counsel asserted that the #MeToo movement has recently changed societal attitudes and “reflects the contemporary standards of decency of ordinary members of the public”.

According to the Supreme Court justice, the movement has brought to the fore that sexual assaults and harassment should not be tolerated. And that the victims of such behaviour should not “remain silent”.

However, her Honour further found that although the movement has led to change, it has not led to a difference in community standards that has transpired into changes to what is deemed “indecent” under the law.

Professor Douglas pointed out that while behaviour such as the police officer’s “is now routinely called out on social media” due to #MeToo, and the “judgment refers to the trickle down of this movement to community standards”, essentially Justice Smith “claims ‘we are not there yet’”.

And “that is disappointing if it’s true”, the professor reflected.

The other foot

Writing in the Conversation, Western Sydney Law School lecturer Dr Hadeel Al-Alosi posited that Magistrate Ridley’s argument “effectively shifts the blame on victims and implies that the sexualisation of society means women consent to being sexually harassed”.

While Professor Douglas concluded that “judges are constrained by the evidence that is in front of them”. And “clearly, in this case, the defence ran a strong case that convinced the magistrate” that nothing indecent had occurred.

But, one thing is for sure, it would be interesting to see how police officer Andrew Ramsden reacted if a man that he felt had the potential to sexualise him had given him a bit of a pinch on his right buttock, and then lent in and said, “I hope you know how to take that the right way.”