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Chapter 40: Indecent Assault

Table Of Contents  

[40.0] Introduction 

This chapter will examine the offence of 'Indecent Assault', as provided for by section 141(1) of the Penal Code (Ch. 26). 

When interpreting any section of the Penal Code (Ch. 26), section 3 must be considered. That section states: 

'This Code shall be interpreted in accordance with the Interpretation and General Provisions Act and the principles of legal interpretation obtaining in England, and expressions used in it shall be presumed, so far as is consistent with their context, and except as may be otherwise expressly provided, to be used with the meaning attaching to them in English criminal law and shall be construed in accordance therewith.' (emphasis added) 

See: Sexual Offences Act 1956 (UK), section 14. 

See also: Criminal Procedure Code (Ch. 7), sections 159 & 175.

[40.1] Offence 

Section 141(1) of the Penal Code (Ch. 26) states: 

'Any person who unlawfully and indecently assaults any woman or girl is guilty of a felony, and shall be liable to imprisonment for five years.'

[40.2] Wording Of Charge 

'[Name of Defendant] at [Place] on [Date] did unlawfully and indecently assault [name Of complainant].'

[40.3] Elements 

A. Defendant 

B. Place 

C. Date 

D. Unlawfully 

E. Indecently 

F. Assault 

G. Complainant

[40.4] Dates Of Offences 

The element regarding the 'Dates Of Offences Of A Sexual Nature' is examined commencing on page 668. The law relating to 'Dates Of Offences Generally' is examined commencing on page 85.

[40.5] Unlawfully

[40.5.1] Introduction 

An 'assault' is unlawful unless it is authorised, justified or excused by law. 

In R v Kimber (1983) 77 CrAppR 225 [[1983] 3 AllER 316; [1983] 1 WLR 1118] Lawton LJ, delivering the judgment of the Court, stated at pages 228 – 229: 

'An assault is an act by which the defendant intentionally or recklessly causes the complainant to apprehend immediate, or to sustain, unlawful personal violence: see VENNA (1975) 61 CrAppR 310, 314; [1976] QB 421, 428 – 429. In this case the appellant by his own admissions did intentionally lay his hands on Betty. That would not, however, have been enough to prove the charge. There had to be evidence that the appellant had intended to do what he did unlawfully. When there is a charge of indecent assault on a woman, the unlawfulness can be proved, as was sought to be done in DONOVAN (1934) 25 CrAppR 1; [1934] 2 KB 498, by evidence that the defendant intended to cause bodily harm. In most cases, however, the prosecution tries to prove that the complainant did not consent to what was done. The burden of proving lack of consent rests upon the prosecution: see MAY (1912) 8 CrAppR 63; [1912] 3 KB 572 per Lord Alverstone CJ at p. 575. The consequence is that the prosecution has to prove that the defendant intended to lay hands on his victim without her consent. If he did not intend to do this, he is entitled to be found not guilty; and if he did not so intend because he believed he was consenting, the prosecution will have failed to prove the charge. It is the defendant's belief, not the grounds on which it was based, which goes to negative the intent.'

[40.5.2] Consent 

Section 141(2) of the Penal Code (Ch. 26) states: 

'It is no defence to a charge for an indecent assault on a girl under the age of fifteen years to prove that she consented to the act of indecency.' 

The burden of proving lack of consent rests on the prosecution, see R v May [1912] 3 KB 572 [(1912) 8 CrAppR 63)] at page 575, per Lord Alverstone CJ. 

'It is clear that it is not the law that a man may never be guilty of an indecent assault upon his wife', see R v Kowalski (1988) 86 CrAppR 339 at page 341 & R v Caswell [1984] CrimLR 111. (emphasis added) 

In R v Tabassum [2000] 2 CrAppR 328 [[2000] CrimLR 686] Rose LJ, delivering the judgment of the Court of Appeal, stated at pages 336 – 337: 

'On the evidence, if the jury accepted it, consent was given because they mistakenly believed that the defendant was medically qualified or, in the case of the third complainant, trained at Christie's and that, in consequence, the touching was for a medical purpose. As this was not so, there was no true consent. They were consenting to touching for medical purposes not to indecent behaviour, that is, there was consent to the nature of the act but not its quality. Flattery [(1877) 2 QB 410] and Harms [(1944) 2 DLR 61] […] are entirely consistent with that view because, in each of those cases, the woman's consent to sexual intercourse was to a therapeutic, not a carnal act. A similar principle underlines the decision in Rosinski (1824) 1 Mood 18, 168 Eng Rep 1168.' 

See also: Faulkner v Talbot (1982) 74 CrAppR 1; [1981] 3 AllER 468; [1981] 1 WLR 1528; [1981] CrimLR 705.

[40.6] Indecently 

In R v Goss & Goss (1990) 90 CrAppR 400 Saville J, delivering the judgment of the Court, stated at page 406: 

'If in all the circumstances the act complained of is capable of being considered by right – minded people as indecent; if there is the requisite intention; and if there is no consent […], then it seems to us that the ingredients of the offence are made out.' 

In R v Court (1988) 87 CrAppR 144 [[1989] AC 28; [1988] 2 WLR 1071; [1988] 2 AllER 221; [1988] CrimLR 537] Lord Ackner, with whom Lordships Keith and Fraser concurred, held at page 156: 

'I, therefore, conclude that on a charge of indecent assault the prosecution must not only prove that the accused intentionally assaulted the victim, but that in so doing he intended to commit an indecent assault, ie., an assault which right – minded persons would think was indecent. Accordingly, any evidence which tends to explain the reason for the defendant's conduct, be it his own admission or otherwise, would be relevant to establish whether or not he intended to commit, not only an assault, but an indecent one.' 

In R v Leeson (1968) 52 CrAppR 185 Diplock LJ, delivering the judgment of the Court, held at page 187: 

'The definition of "indecent assault" which has long been accepted in these courts is an assault accompanied with circumstances of indecency on the part of the prisoner towards the person assaulted. This Court has no doubt that where an assault of this kind involving the kissing of a girl against her will is accompanied by suggestion that sexual intercourse should take place or that sex play should take place between them, the assault is an indecent one.' 

In Beal v Keeley (1951) 35 CrAppR 128 [[1951] 2 AllER 763; [1951] WN 505] Lord Goddard LJ, delivering the judgment of the Court, stated at pages 129 – 130: 

'The only facts which need be stated are these: the respondent, being by a wood with a boy of the age of fourteen, exposed his erect penis to the boy and asked him to get hold of it and rub it. The boy refused to do so, whereupon the respondent caught hold of him and pulled him towards himself. There at any rate, was the assault, a hostile act, because the act was against the boy's will. It does not matter that the boy could not give consent; the act was in fact against his will. It is said that that was not an indecent assault. Why not? In my opinion the definition given in Archbold's Criminal Pleading, etc (32nd ed., p.1067), of an indecent assault is perfectly right: "An assault accompanied with circumstances of indecency on the part of the prisoner", that is to say, indecency towards the person alleged to have been assaulted. If a person assaulted, that is to say, if there is a hostile act with every circumstance of indecency, I cannot see why it is not an indecent assault. If a man assaults a woman, at the time exposing his person to her, I have no doubt that is an indecent assault on a female, just as I have no doubt that the conduct of the respondent was an indecent assault.' 

See also: R v Thomas (1985) 81 CrAppR 331; R v Sutton [1977] 3 AllER 476; [1977] 1 WLR 1086; [1977] CrimLR 569; (1978) 66 CrAppR 21; R v McCormack [1969] 2 QB 442; [1969] 3 AllER 371; [1969] 3 WLR 175; (1969) 53 CrAppR 514; Director of Public Prosecutions v Rogers (1953) 37 CrAppR 137; [1953] 1 WLR 1017; [1953] 2 AllER 644 & R v Rolfe (1952) 36 CrAppR 4.

[40.7] Assault 

If there is no assault, there is no indecent assault, see R v Mason (1968) 52 CrAppR 12 at page 18. 

The element 'Assault' is examined commencing on page 564.

[40.8] Corroboration 

'What is required to be corroborated in cases of indecent assault is the indecency', see R v Rolfe (1952) 36 CrAppR 4, per Lord Goddard CJ at page 6. 

The law relating to the need for 'Corroboration' in respect of 'offences of sexual nature generally' is examined commencing on page 668.

[40.9] Young Complainants 

The 'age' of the complainant is not an element of this offence. The law relating to the evidence of 'Young Complainants Generally' is however examined commencing on page 699.

[40.10] Evidence Of Spouses 

The law relating to the 'Competency Of Spouses' is examined commencing on page 282.

[40.11] Jurisdiction 

The jurisdiction of the Courts in respect of the offence of 'Indecent Assault' is examined commencing on page 14. 

The law relating to 'Sentencing' in respect of that offence is examined commencing on page 918.

[40.12] Related Offences 

Refer to 'Offences Against Morality' as provided for in Part XVI of the Penal Code (Ch. 26) from section 136 to 168. 

The offences of: 

·                     'Rape' and 'Attempted Rape', section 137 of the Penal Code (Ch. 126) are examined commencing on page 629; 

·                     'Defilement', sections 142 & 143 of the Penal Code (Ch. 26) is examined commencing on page 647; 

·                     'Incest By Males', section 163 of the Penal Code (Ch. 26) is examined commencing on page 656; and 

·                     'Incest By Females', section 164 of the Penal Code (Ch. 26) is examined commencing on page 662. 

Refer also to subsection (3) of section 141 of the Penal Code (Ch. 26).