A majority Supreme Court decision has left little room for ambiguity concerning the requirements for proving an offence of sexual assault.
The test for sexual assault is an entirely objective one and no evidence of sexual motive is necessary when it is established an assault took place in indecent circumstances, the three judge majority said.
The issue arose in a case where a young male appealed his conviction by a jury for sexual assault which occurred three years ago when he was aged 14 and his male victim was aged six.
Both children were playing in a field, the older boy pulled down the younger one’s trousers and underpants to his knees and slapped him several times on his bare bottom.
The majority - Mr Justice Peter Charleton, Ms Justice Iseult O'Malley and Mr Justice Brian Murray -set out three elements to prove the offence of sexual assault. These were that (1) the accused intentionally assaulted the victim; (2) the assault itself or its circumstances was proven, using an objective standard, to be indecent; and (3) the accused's purpose was to assault in the indecent circumstances.
In clarifying what is meant by objective indecency, the judges said the external circumstances relating to commission of the offence must be “an affront to ordinary modesty”.
Reduce potential for errors
A codification of sexual offences would assist significantly in reducing the potential for serious errors in trials of this kind, the judges have suggested.
In the majority judgment, Mr Justice Peter Charleton said the most common example of intentional assault in the courts’ experience is where a person is touched without consent on their sexual organs, or in the case of a woman, her breasts.
Juries might usefully be instructed that a sexual assault comprises touching the victim without consent in an indecent manner or in indecent circumstances, he said.
No element of hostility or aggression is required, the prosecution is not required to prove any sexual desire motivating the assailant but must prove the accused purposely assaulted the victim in an indecent manner or in indecent circumstances.
A trial judge should not leave a case to the jury to try an indecent assault charge unless the circumstances in which the assault is committed are, on the prosecution case, objectively indecent.
Whether or not a judge would, in such rare circumstances, rule out indecent assault and leave only a charge of assault to a jury is a matter for assessment in the light of all of the evidence, he said.
He noted adolescents, regrettably, “may all too easily cross boundaries in matters of this kind”. The facts of the boy’s case enabled the jury to return a verdict of guilty of sexual assault and the conviction was humanely dealt with by supervision orders in a manner reflecting the youth of the accused and the other surrounding circumstances
The two dissenting judges - Mr Justice Gerard Hogan and Mr Justice Séamus Woulfe, disagreed that the prosecution was not obliged to establish a sexual element to the assault in this case.
Both believed the accused’s sexual assault conviction should be set aside and replaced with a conviction for assault under the Non-Fatal Offences Against the Person Act 1997.
An objective assessment of the circumstances of this assault could not lead to an inference it was committed in circumstances of indecency, according to Mr Justice Hogan.
Agreeing, Mr Justice Woulfe considered the circumstances were absolutely crucial, including that the incident occurred while children were playing together and the smacking apparently occurred after some form of childish altercation or misunderstanding.
It was significant that the mother of the younger boy had described the older boy as coming across as younger and more immature than his 14 years, more like a nine or 10-year-old, he said.