The Difference Between Act of Indecency, Indecent Assault, Sexual Act and Sexual Touching

Retired broadcaster Alan Jones certainly had a lengthy and controversial career, perhaps most notably during his time as the breakfast radio host on Sydney radio station 2GB from 2002 until 2020.

During that time, Jones was repeatedly accused of misogyny over his demeaning comments towards female politicians such as New Zealand Prime Minister Jacinda Ardern and Australian Prime Minister Julia Gillard, as well as racism over his comments towards Muslim Cleric Keysar Trad, and his description of Lebanese people as ‘vermin’ and ‘scum’.

Jones was ultimately ordered to pay Trad $10,000 in damages for his remarks, and it is widely accepted that his comments against Lebanese people coupled with his repeated calls for ‘white Australians’ and bikie gangs to descend on Cronulla incited the appalling riots in the beachside suburb in 2005.

Jones was not charged with the criminal offence of incitement over his remarks regarding Cronulla, nor did he face any other legal consequences, despite his conduct clearly amounting to a crime.

Jones’ tirades have caused great harm to those he has targeted – people including the Wagner family of Toowoomba in Queensland who he subjected to a “vicious and spiteful” on air attack falsely claiming they were responsible for floods that destroyed the town and caused the deaths of 12 people.

The Supreme Court ultimately found the allegations to be unfounded, ordering Jones and two radio stations to pay $3 million in damages.

Jones’ misogynistic, racist and spiteful attacks have led to repeated calls for the boycott of this radio program, and after years of decline in ratings and viewership, as well as loss of sponsors, Jones finally retired from the airwaves in 2020.

Sexual allegations

In December 2023, several men came forward accusing Jones of touching them in a sexual manner while they were in their late teens or early twenties.

The allegations at that time included that Jones had groped their genitals and forcefully kissed them, without their consent.

Sexual charges

On Tuesday, 19 November 2024, the now 83-year old was formally arrested at his Sydney harbourside home and is now charged with 26 offences against eight complainants.

The charges comprise 11 counts of aggravated indecent assault, 11 of assault with act of indecency, two of sexual touching and two of common assault.

Jones has professed his innocence through his defence lawyer, and is entitled to be presumed innocent until and unless he is found guilty in a court of law.

Jones was released from custody on conditional bail and is scheduled to appear in Downing Centre Local Court on 18 December 2024.

The offences

Many are uncertain as to the law regarding the charges faced by Jones, and specifically of the difference between them.

So, here’s a basic outline.

Act of indecency

The offence of act of indecency applies only to conduct alleged to have occurred before 1 December 2018.

It was, until that time, contained in section 61N of the Crimes Act 1900 (NSW), and carries a maximum penalty of 18 months in prison where the complainant was aged 16 years or over at the time of the conduct, or 2 years if the complainant was under that age.

To establish the offence, the prosecution must prove beyond reasonable doubt that:

1. The defendant committed an act of indecency on or towards the complainant, or incited another person to do so,
2. The act was without the complainant’s consent, and
3. The defendant knew the complainant was not consenting, or was reckless as to whether or not the complainant was consenting.

An ‘act of indecency’ has been defined by the courts as one which is “contrary to the ordinary standards of respectable people in the community”, and must have a sexual connotation or overtone.

Such conduct falls short of sexual penetration – which would amount to the offence of sexual assault.

Conduct is ‘reckless’ is the defendant realised it was possible the complainant was not consenting but went ahead with the actions regardless.

Sexual act

The offence of act of indecency was replaced by the offence of sexual act on 1 December 2018.

Sexual act is an offence under section 61KE of the Crimes Act 1900 which carries a maximum penalty of 18 months in prison or 2 years if it involves a child between 10 and 16 years of age or 7 years if it involves a child under 10.

To establish the offence, the prosecution must prove beyond reasonable doubt that:

1. Without the consent of the other person (the complainant), and
2. Knowing the complainant did not consent,
3. You intentionally carried out a sexual act with or towards the complainant, or incited the complainant to carry out a sexual act with or towards you, or incited a third person to carry out a sexual act with or towards the complainant, or incited the complainant to carry out a sexual act with or towards a third person.

‘Sexual act’ is defined as any act, other than sexual touching, carried out in circumstances where a reasonable person would consider it to be sexual.

An act is not sexual if it was carried out for a genuine medical or hygienic purpose.

Indecent assault

Like the offence of act of indecency, the offence of indecent assault applies only to acts alleged to have been committed before 1 December 2018.

It was, until that time, contained in section 61L of the Crimes Act 1900 (NSW), and carries a maximum penalty of 5 years in prison.

To establish the offence, the prosecution must prove beyond reasonable doubt that:

1. The defendant assaulted another person,
2. The assault was indecent,
3. The assault was without the other person’s consent, and
4. The defendant knew the other person did not consent or was reckless as to whether the person was consenting.

An ‘assault’ includes any unauthorised touching, as well as putting another in immediate fear of unlawful personal violence.

Sexual touching

The offence of indecent assault was replaced by the offence of sexual act on 1 December 2018.

It is contained in section 61KC of the Crimes Act 1900 and carries a maximum penalty of 5 years in prison, or 10 years where it involved a child between 10 and 16 years of age, or 16 years where it involved a child under 10.

To establish the offence, the prosecution must prove beyond a reasonable doubt that:

1. The defendant sexually touched another person (the complainant), or incited the complainant to sexually touch themselves, or incited a third person to sexually touch the complainant, or incited the complainant to sexually touch a third person,
2. The defendant did so intentionally,
3. The defendant did so without the consent of the complainant, and
4. The defendant knew the complainant was not consenting.

‘Sexual touching’ is defined as touching another person with any part of the body or through anything, including clothing in circumstances where a reasonable person would consider it to be sexual.

The matters to be taken into account when determining whether touching is sexual include:

1. Whether there is touching of the genitals, or breasts of a female or someone who identifies as female,
2. Whether the act was for sexual arousal or gratification, and
3. Whether any other aspect of the touching, or the surrounding circumstances, make it sexual.

Touching is not sexual if carried out for genuine medical or hygienic purposes.

Proof of consent and legal defences

Consent is the primary issue in many cases of a sexual nature, and it is important to be aware the prosecution is required to prove lack of consent beyond a reasonable doubt.

In addition to this, the prosecution must disprove to the same high standard any legal defence raised on the evidence.

The defendant is entitled to an acquittal if the prosecution is unable to do this.

Legal defences to sexual charges include duress, automatism (including ‘sexsomnia’), mental illness and necessity.

Going to court?

If you have been accused of a sexual offence, it is important to bear in mind the law presumes your innocence until and unless you are proven to be guilty in a court.

In addition to the prosecution having to prove each and every element (or ingredient) of the offence, it must also disprove any legal defence that may be raised on the evidence.

And while being accused can cause an enormous amount of stress and anxiety, having a strong legal team by your side can help you navigate the process, guide you on the way, and steer you towards a favourable outcome.

If you are going to court for a sexual offence, call Sydney Criminal Lawyers today for empathetic, compassionate and formidable legal representation by experienced, specialist criminal defence lawyers with a long and proven track record of having sexual charges withdrawn at early stages in the proceedings, or dismissed in court if they proceed to a defended hearing or jury trial.