Reform WA legislation on Indecent Assault to Protect the Rights of Victims

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Shelley Tunks
Shelley Tunks signed this petition

Your Butt is Up for Grabs – Reclaim It.
 
Sign this petition if you agree Western Australia must reform indecent assault and make legislative changes that afford greater protection to the community and convey our respect to victims.
 
Imagine this…. 
You are a professional athlete and have just played a friendly game of basketball, a charity match with prominent community members. You stand to pose for a group photo, when a police officer, a stranger, walks right up behind you, uninvited, to join the photo and whispers intimately into your ear “I hope you take this the right way” before grabbing you firmly on the buttocks, making you physically jump forward to get away from him. 


Imagine further, that you stood up for yourself against this man who holds the title to serve and protect. You make this choice in the hope that you can stop him from doing it (or worse) to someone else in the future. It goes to trial, and even with video footage and images captured surrounding the incident, imagine how outrageous it would be for a Magistrate to rule that the act was not sexual assault simply because the police officer said it wasn’t, further commenting that the grabbing of a woman’s buttocks was not contrary to community standards of decency nor an act considered indecent assault, and that “the use of a slap or a tap on the bottom on the sporting field is seen regularly in the Australian Football League, cricket, netball, rugby and mixed netball.  A slap on the bottom can carry with it a connotation of congratulations, commiseration or encouragement.  It transcends the male and female divide.”


It Actually Happened.
In Western Australia, the Magistrate hearing the charge, summarised that butt-grabbing is not at all sexual - regardless of the fact that the police officer and the woman were complete strangers and there was no consent.
In making the decision after a two day trial beginning on 29 March 2018 in South Hedland, Magistrate Ridley remarked that in "the 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” and in her opinion that “in 2017, a pinch on the bottom is not appropriate but is an act that seems to have lost its overtly sexual connotation and to be conduct that is low enough on the level of seriousness not to warrant a mention.”
Currently there is no definition of Indecent Assault in WA and NSW like there is in VIC, which allows for a loophole in the law to allow a situation like this to happen again, where an offender is able to violate someone’s personal space and help themselves to someone’s body, and is accepted by law in doing so.

 

Bums Are Not Sexy... 
 Magistrate Ridley held that in the circumstances, the touching of the woman’s buttocks was not contrary to community standards of decency (despite the woman not consenting and finding it violating) so while inappropriate, was not an act that has a sexual connotation, and therefore did not amount to indecent assault. 
 
The Magistrate also found that the manner and nature of the touching was a crucial issue in determining whether the act of the Sergeant was indecent. This effectively accepts that the Sergeant intended the assault to be in good humour while rejecting the Prosecution submission that the intention of the Sergeant was not relevant, and ignored the opinion of the woman who found it offensive, despite finding that she too, was a credible witness.
 
The decision was upheld by Justice Smith at the Supreme Court on 5 March 2019, as was the basis on which the findings were made and the commentary by Magistrate Ridley, which was not condemned.The court ruled that the buttocks’ does not carry a sexual connotation, and in the circumstances of the case, whilst inappropriate, was not held to be indecent assault predominantly due to the fact that it was on a sporting field.
 
Overall, it was determined that the touching of a person's bottom is capable of being an act that is indecent, but that it is not inherently so.  It remains an issue for the judge to determine with respect to previous case law (such as this case which will set a precedent for future cases) and prevailing community standards of decency at the time. By contrast, the breasts, genitals and anus do carry a presumption under case law, that any touching without consent would amount to an indecent assault, as these body parts do carry a sexual connotation, unlike the buttocks (see R v Harkin (1989) 38 A Crim R 296, at 301).
 

What Can We Do?
 In Victoria, indecent assault was abolished in July 2015, and replaced with the offence of sexual assault, and a definition of sexual touching was introduced that clearly states in The Crimes Act 1958 (Vic) under Section 35B:   
 
(2)     Touching may be sexual due to—
       
(a)         the area of the body that is touched or used in the touching, including (but not limited to) the genital or anal region, the buttocks or, in the case of a female or a person who identifies as a female, the breasts; or
 
(b)        the fact that the person doing the touching seeks or gets sexual arousal or sexual gratification from the touching; or
 
(c)         any other aspect of the touching, including the circumstances in which it is done.
 
By having a definition of sexual touching, the Victorian legislation establishes a clear framework and understanding of what violates society’s standards of decency without the need for a judge to make contentious determinations. This protects the victim from having to prove that an assault was indecent by creating a presumption that it is inherently so. 
 
It is the intentional touching of the body part which carries a sexual connotation, which is sufficient to constitute an indecent act, without the need to establish the intention of the assailant or that the act was sexual in nature.
 
Western Australia can and should investigate comparative legislative amendments to indecent assault.
 
Why This Petition  
The remarks by Magistrate Ridley during the trial are outdated and not consistent with society’s standards. We need changes to the legislation in Western Australia. Assailants should not be able to justify or excuse their behaviour on the basis of how they expected or wanted the victim to feel. It allows for too many opportunities to prey on another’s vulnerabilities and imposes on the victim an expectation that they accept the will of the assailant to control their body. It also tolerates power and reinforces removal of the opportunity to say no and sends the message that as a society we are willing to accept poor excuses for decency and are ready to believe the offender before the victim. This is particularly disconcerting in situations of power imbalances, such as the workplace and in dealings with people in authority.
 

Sign this petition if you agree Western Australia must produce a clear definition of indecent assault by law. Let’s protect our community and respect the rights of victims.