A controversial Local Court judgment in Western Australia in relation to indecent assault has been upheld by the Western Australia Supreme Court. The judgment turned on an agreed set of facts. After a charity wheelchair basketball event, members of the police team prepared to take a group photo. One of the men in the photo said something like “don’t take this the wrong way”, and as the photo was about to be taken, pinched a woman on the side of her right buttock. The woman accepted that this action was intended to be “in some way humorous" and was done "in order to provoke a startled reaction”.

It was agreed that there was an unlawful assault, however the prosecution needed to also show the assault was indecent. Indecent assault carries up to 5 years imprisonment, and a fine of $24,000. For an assault to be indecent, it must have a sexual connotation, and offend against prevailing contemporary community standards of decency and propriety. The Magistrate made a series of findings, concluding that touching a person’s bottom was not necessarily or inherently indecent and the pinch in this case was an example of unlawful but not indecent touching.

The Magistrate found that “the touching of breasts, vagina, penis, testicles or anus without further explanation would cause an ordinary rightthinking member of the community to conclude that such an act is inherently sexual”. She found that in the 70s and 80s women were “regularly oversexualised” and “a pinch on the bottom was naughty and seen as overtly sexual”. However, “when regard is had to the fact that in 2017, in an era of 'twerking', … grinding, simulated sex and easy access to pornography, the thought of a pinch on the bottom is almost a reference to a more genteel time”.

The Magistrate held that a pinch on the bottom “is not appropriate”, but has “lost its overtly sexual connotation”. By comparison, the Magistrate reasoned “in a certain social context, if a person had their back to another person and the first person tapped the second person on their backside to gain their attention, such an act is unlikely in 2017 to be met with howls of immodesty or indecency.”

The Supreme Court held that judging whether deliberate touching of a person’s buttock is indecent turns on “community standards of decency and propriety” which means considering the “nature and location of the touch”, and the “context and circumstances”. Justice Smith held that the Magistrate appropriately considered the touch in that case was not inherently sexual or indecent.

In the era of the #MeToo movement, there are no doubt people in the Australian community who would take issue with this assessment of prevailing community standards. There can be no doubt, however, that the law remains intact: if an individual’s intention in touching someone on the bottom without consent is for their own sexual gratification, then it constitutes an indecent assault.

Michael Brull

Policy Lawyer