Is an Indecent Act a form of Sexual Assault?

There are often many misconceptions over what is classified as an indecent act and what is a sexual assault. It is important to know the difference, so you can know your rights if you've been charged with an offence. If you've been recently accused of an indecent act, you may want to consider your legal options, because the penalty for a conviction can have a lasting impact on your reputation and freedoms.

What is an indecent act?
Under section 227 of the Queensland Criminal Code Act 1899, any indecent act done wilfully in a public place, or with intention to offend, will be considered an offence. Indecency is based on community standards, and what a member of the ordinary public would consider offensive or insulting. This includes acts such as public masturbation or pretending to perform a sexual act or sending unsolicited nude photos.

Section 9 of the Summary Offences Act 2005 makes it an offence to deliberately expose genitals ('flashing') in a public place, or near enough to a public place that the act may be seen. This is known as wilful exposure. If a person exposes their genitals for the purpose of embarrassing another, it will be an aggravation of the offence.

What makes it different to sexual assault?
Indecent acts do not involve physical contact with another and are therefore considered 'acts' rather than assaults. Although an element of sexual assault involves 'indecency', it is meant in the context of non-consensual sexual touching or a threat of non-consensual sexual activity, amounting to assault. The major differentiation between an indecent act and assault is the physical contact between the offender and the victim. As there is a lack of touching of another person when committing an indecent act, it cannot be considered to be an assault.

If an indecent act committed in public, with the intention to offend were to involve touching another person in a sexual way, without that person's consent, that act would be considered a form of sexual assault rather than an indecent act. 

Sexual assault is a far more serious crime, and in aggravated circumstances, may lead to a sentence of life imprisonment. On the other hand, indecent acts will carry a maximum penalty of 2 years imprisonment, and aggravated wilful exposure a maximum punishment of 40 penalty units or 1 year's imprisonment.

What are the defences to indecent acts?
The possible defences for the offence of an indecent act include, but are not limited to:

Adult Entertainment Permit
If the indecent act, or wilful exposure is done under an adult entertainment permit, such as in a strip club, nude waitressing or exotic dancing, the act will not be considered an offence. However, even with permit, masturbation or touching genitalia will still be considered an offence. 

Act was not done in a public place or with the intent to offend
If the accused can show that the act was not done in public, or that it was intentional, but not intended to insult or offend, there may be a defence to the offence.

Accident
If a person exposes their genitals accidentally, it could not be considered wilful exposure. The lack of criminal intent will also apply to an indecent act lacking the requisite intention.

Compulsion
If an indecent act is done under actual or threatened violence or in obedience with an authority, there is no offence committed.

Intoxication
Where a person is intoxicated without the intention to be on their behalf, any indecent act or wilful exposure may be excused.

What are the penalties for indecent acts?

If a person is found guilty of indecent acts or wilful exposure, there is a variety of penalties available. Including:

• Imprisonment – maximum of two years for indecent acts, or 1 year for aggravated wilful exposure
• Fine – worth a maximum of 2 penalty units for wilful exposure, or 40 penalty units in aggravated circumstances
• Probation
• Community Service
• Good Behaviour Bond or
• Intensive corrections order

What to do if you're charged with an indecent act

If you have been charged with an indecent act or wilful exposure, we want to hear from you at Russo Lawyers. We've helped hundreds of clients over our 30-plus years of practising law. Our team of tenured solicitors will review your case and give you our professional opinion if challenging the accusation is in your best interest. Please contact us today to arrange a consultation.

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