The Difference Between an Act of Indecency and Indecent Assault in NSW

There are a large number of different sexual offences in NSW, which range in severity from summary offences to indictable offences with serious penalties such as long-term imprisonment.

There is a lot of very specific terminology surrounding sexual offences, and this can often lead to confusion.

If you have been charged with any offence, it is important to understand the charges against you and what they mean, so that you can prepare an adequate defence.

Two offences that are often confused are those of committing an act of indecency and indecent assault in NSW. , which relate to conduct that is alleged to have occurred before 1 December 2018 when the offences were superseded by ‘sexual touching’ and ‘sexual act’ respectively.

Although these offences are similar in a number of ways, they carry different penalties and there are a few other differences that set them apart.

If you have been charged with either one of these offences, it is important that you are aware of the differences and what the potential penalties may be.

Indecent assault

The offence of indecent assault was contained in section 61L of the Crimes Act 1900 until 1 December 2018 and requires proof beyond reasonable doubt that:

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

Whether an act is ‘indecent’ is determined according to the standards of a ‘reasonable person’, and the courts have determined in must involved some type of sexual element.

The offence carries a maximum penalty of five years imprisonment, but higher penalties in the case of the aggravated version of the offence which is contained in section 61N.

Act of indecency

The offence of act of indecency was contained in section 61N of the Crimes Act 1900 until 1 December 2018 and requires proof 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.

The maximum penalty for the offence is 18 months in prison if the complainant was at least 16 years of age or 2 years if he or she was over that age, but higher penalties apply for the aggravated version of the offence contained in section 61O.

Legal defences

It is important bear in mind that the onus always rests on the prosecution to prove each of the above elements of the offence beyond a reasonable doubt, and that the defendant is entitled to an acquittal if the prosecution is unable to do so.

In addition to this, where the defendant raises evidence of a legal defence, the prosecution must disprove that defence beyond a reasonable doubt.

Defences to charges of indecent assault and act of indecency include:

1. Self defence,
2. Duress,
3. Necessity, and
4. Lawful correction of a minor.

Going to court?

If you are facing any sexual charges such as indecent assault or act of indecency in New South Wales, it is essential to seek legal help from a criminal defence lawyer who is experienced in producing optimal outcomes in these types of cases.