Indecent and Sexual Assault
Any person who assaults another person and, at the time of, or immediately before or after, the assault, commits an act of indecency on or in the presence of the other person, is liable to imprisonment for 5 years.To prove the offence of indecent assault the Crown must first prove that there was an assault. The “assault” element may be satisfied by proof of either physical contact, however minimal, or a threat to the victim involving a reasonable apprehension of immediate and unlawful physical violence. Only in the latter case is it necessary to prove that the conduct was “angry, revengeful, rude, insolent or hostile”.In either case, the act relied upon by the Crown must be deliberate, that is, a non-accidental voluntary act of the accused. The conduct constituting the assault must be unlawful. This excludes touching, whether deliberate or otherwise, in the course of the ordinary exigencies of everyday life.Consent is not a defence when the complainant is a child under 16 years.
When consent is an issue, the common law definition of consent applies. The Crown must prove that the complainant did not consent to the act alleged. The Crown must also prove that the accused knew that the complainant was not consenting or was reckless in that regard.The same principles relating to recklessness in cases of sexual intercourse without consent apply to offences of indecent assault and failure to advert to the issue of consent can amount to recklessness:For an assault to be “indecent” it must have a sexual connotation. It will have that connotation where the touching or threat is of a portion of the complainant’s body, or by use of part of the assailant’s body, which gives rise to that connotation. However, if the assault does not unequivocally offer a sexual connotation, the Crown must show that the accused’s conduct was accompanied by an intention to obtain sexual gratification.The Crown must establish that the accused “at the time of, or immediately before or after the assault ” committed an act of indecency “on or in the presence of ” the complainant. The same act may (and frequently will) constitute both the assault and the act of indecency. The words “immediately before or after ” add something to the words “at the time of ”, but if there are two distinct acts involved, they need not occur within seconds or minutes of each other.
The act of indecency must be committed either “on” or “in the presence of ” the complainant. In the context of the offence of committing an act of gross indecency in the presence of a child (without the need to prove an accompanying assault), the South Australian Court of Criminal Appeal interpreted the phrase “in the presence of ” to include cases where the complainant was asleep, did not see the act and was unaware of it. It was sufficient that the child was present when the act occurred.
Evidence that the accused was intoxicated at the time of the relevant conduct cannot be taken into account if the intoxication was self-induced.
Prior to 14 May 1981, sexual assault offences were divided into rape offences and related sexual offences and the term “sexual intercourse” was not defined in the Crimes Act 1900. Under the common law, rape required “carnal knowledge”: penile penetration of the vagina of a woman who was not the accused’s wife without consent.
The Crimes (Sexual Assault) Amendment Act 1981 commenced operation on 14 July 1981. This Act amended the Crimes Act 1900 by introducing a statutory definition of sexual intercourse:
(a) sexual connection occasioned by the penetration of the vagina of any person or the anus of any person by:
(i) any part of the body of another person, or
(ii) an object manipulated by another person,
except where the penetration is carried out for proper medical purposes
(b) sexual connection occasioned by the introduction of any part of the penis of a person into the mouth of another person
(c) cunnilingus, or
(d) the continuation of sexual intercourse as defined in paragraph (a), (b) or (c): s 61A(1) (rep).
The amending Act also:
abolished the common law offences of rape and attempted rape: s 63
introduced four categories of sexual assault (according to the degree of seriousness of the offence in terms of the level of violence) with different penalty structures: ss 61B, 61C, 61D and 61E
removed marital immunity
removed immunity for children aged under 14 years
introduced limitations on the admission of evidence about the complainant’s sexual experience and reputation
The Crimes (Amendment) Act 1989 commenced operation on 17 March 1991. The Act amended the Crimes Act 1900 by replacing the four categories of sexual assault with a new offence structure: three basic and aggravated forms of offences (sexual assault, indecent assault and act of indecency) and an offence of assault with intent to have sexual intercourse.
The Criminal Legislation (Amendment) Act 1992 commenced operation on 3 May 1992. The Act amended the Crimes Act 1900 by amending the definition of sexual intercourse to include “sexual connection occasioned by the sexual penetration to any extent of the genitalia of a female person or the anus of any person …”.
A new offence of “sexual touching” was inserted into the Crimes Act 1900 by the Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 (commenced 1 December 2018). Sexual touching is defined in s 61HB as follows:
(1) For the purposes of this Division, sexual touching means a person touching another person:
(a) with any part of the body or with anything else, or
(b) through anything, including anything worn by the person doing the touching or by the person being touched, in circumstances where a reasonable person would consider the touching to be sexual.
(2) The matters to be taken into account in deciding whether a reasonable person would consider touching to be sexual include:
(a) whether the area of the body touched or doing the touching is the person’s genital area or anal area or (in the case of a female person, or transgender or intersex person identifying as female) the person’s breasts, whether or not the breasts are sexually developed, or
(b) whether the person doing the touching does so for the purpose of obtaining sexual arousal or sexual gratification, or
(c) whether any other aspect of the touching (including the circumstances in which it is done) makes it sexual.
(3) Touching done for genuine medical or hygienic purposes is not sexual touching.
From 17 March 1991
Section 61R was inserted into the Crimes Act 1900 by the Crimes Amendment Act 1989 (commenced 17/3/1991), and read:
(1) For the purposes of sections 61I and 61J, a person who has sexual intercourse with another person without the consent of the other person and who is reckless as to whether the other person consents to the sexual intercourse is to be taken to know that the other person does not consent to the sexual intercourse.
(2) For the purposes of sections 61I and 61J and without limiting the grounds on which it may be established that consent to sexual intercourse is vitiated:
(a) a person who consents to sexual intercourse with another person:
(i) under a mistaken belief as to the identity of the other person, or
(ii) under a mistaken belief that the other person is married to the person, is to be taken not to consent to the sexual intercourse, and
(b) a person who knows that another person consents to sexual intercourse under a mistaken belief referred to in paragraph (a) is to be taken to know that the other person does not consent to the sexual intercourse, and
(c) a person who submits to sexual intercourse with another person as a result of threats or terror, whether the threats are against, or the terror is instilled in, the person who submits to the sexual intercourse or any other person, is to be regarded as not consenting to the sexual intercourse, and
(d) a person who does not offer actual physical resistance to sexual intercourse is not, by reason only of that fact, to be regarded as consenting to the sexual intercourse.
Section 61R(2)(a1) was inserted in 1992 (by the Criminal Legislation (Amendment) Act 1992, commenced 3.5.1992). The new subsection provided that “a person who consents to sexual intercourse with another person under the mistaken belief that the sexual intercourse is for medical or hygienic purposes is taken not to have consented to the sexual intercourse”. In 2003, the words “(or any other mistaken belief about the nature of the act induced by fraudulent means” were inserted in 61R (2)(a1) (by the Crimes Amendment (Sexual Offences) Act 2003, commenced 13.6.2003).
Section 61R was repealed by the Crimes Amendment (Consent—Sexual Assault Offences) Act 2007, Sch 1, commenced 1 January 2008.
Section 61HA was inserted into the Crimes Act 1900 by the Crimes Amendment (Consent – Sexual Assault Offences) Act 2007 (the Act), which commenced 1 January 2008.
The Crimes Legislation Amendment Act 2014 amended s 61HA (commenced 23 October 2014) to apply the statutory definition of consent to attempts to commit sexual assault offences and also negated consent to sexual intercourse in circumstances where consent has been given under a mistaken belief that the sexual intercourse is for health purposes. This expanded the circumstances in section 61HA(5)(c) in which consent is negated, which were then limited to medical or hygienic purposes.
The Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 (relevant sections commenced 1 December 2018), substituted the former s 61HA with new s 61HA which defines “sexual intercourse” for the purpose of Pt 3, Div 10. New s 61HE, inserts and expands the definition of consent to “sexual activity” in the Crimes Act 1900 to include sexual intercourse, sexual touching or a sexual act (s 61HE(11)). Section 61HE and applies to offences under ss 61I, 61J, 61JA, 61KC, 61KD, 61KE and 61KF: s 61HE(1) and is no longer limited, as previously, to “sexual intercourse”. The existing consent provision, s 61HA, was repealed.
Subs 61HE(3) has also expanded “knowledge of consent” to include the incitement of the alleged victim or inciting a third person to engage in sexual activity with or towards the alleged victim.
The Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 amends a number of Acts to implement recommendations made by the Royal Commission into Institutional Responses to Child Sexual Abuse and the Child Sexual Offences Review Team. The Second Reading Speech stated that the amendments aim to “rationalise and consolidate our offence framework and improve the chances of successful prosecution of child sexual offences” (Legislative Assembly, 6 June 2018).