What is Obscene Exposure in New South Wales?

by Ugur Nedim

It has been reported that on Friday, 13 March 2020, a 49-year old man who boarded a train at Wollongong station exposed himself to a 20-year old woman.

According to reports, the woman walked through the carriages but the man followed, before he committed an unspecified ‘sexual act’ towards her.

The passenger alerted police, who arrested the man at Central Railway Station.

He was charged with obscene exposure for allegedly exposing himself, stalk or intimidate with intent to cause fear of physical or mental harm for following the woman and committing a ‘sexual act’ over what followed.

He was granted bail and is scheduled to appear in Downing Centre Local Court on 17 April 2020.

What is the Offence of Obscene Exposure?

Section 5 of the Summary Offences Act 1988 (the Act) prescribes a maximum penalty of six months in prison and/or a fine of $1,100 for anyone who, ‘in or within view from a public place or school, wilfully and obscenely exposes his or her person’.

To establish the offence, the prosecution must prove beyond reasonable doubt that the defendant:

  1. Was in or within view of a public place or school
  2. Obscenely exposed himself or herself, and
  3. Did so wilfully.

What is a Public Place?

Public place is defined by section 3 of the Summary Offences Act as, ‘a place (whether or not covered by water), or a part of premises, that is open to the public, or is used by the public whether or not on payment of money or other consideration, whether or not the place or part is ordinarily so open or used and whether or not the public to whom it is open consists only of a limited class of persons’.

This definition is broad enough to encompass many workplaces, depending on the particular circumstances.

And in the case of R v Eyles [1977] NSWSC 452, the Supreme Court found that the prosecution only needs to prove that the exposed area could have been seen by a person who was in a public place, not that the defendant was in a public place at the time of the exposure or that the exposure was actually seen by anyone.

But at the end of the day, it can be argued that a court would be unlikely to find that the actions of the English prankster were not sufficient to make out the offence of obscene exposure because his genitalia was not exposed.

What is the Meaning of Obscene?

Whether exposure is ‘obscene ‘is determined by contemporary standards of decency, although the courts have held that exposure of the penis and/or testicles amounts to obscene.

However, it is unlikely that wearing underwear of the type worn by Mr Haggerty would suffice, as no part of his genitalia was showing.

What is the Meaning of Wilful?

Wilful has been defined as having the required intent, which means the prosecution must prove beyond reasonable doubt that the exposure was on purpose rather than by accident, by the act of another person or through mere negligence.

Defences

In addition to the requirement that the prosecution must prove each of the elements of the offence beyond reasonable doubt, it must also disprove any valid defences that are raised.

Such defences may include duress, necessity and self-defence – depending on the particular circumstances of the alleged offending.

What is the offence of Sexual Act?

Sexual act is an offence under section 61KE of the Crimes Act 1900.

The section states that a defendant is guilty of a sexual act if he or she, without the consent of the complainant and knowing the complainant does not consent, intentionally:

  • carries out a sexual act with or towards the complainant, or
  • incites the complainant to carry out a sexual act with or towards the defendant, or
  • incites a third person to carry out a sexual act with or towards the complainant, or
  • incites the complainant to carry out a sexual act with or towards a third person.

To establish the offence, the prosecution must prove beyond reasonable doubt that:

  • The defendant carried out a sexual act towards the complainant, incited a third person to do so or incited the complainant to carry out a sexual act,
  • The complainant did not consent, and
  • The defendant knew consent was not given, or was reckless as to whether consent was given.

What is a ‘Sexual Act’?

A ‘sexual act’ is defined by section 61HC as any act – other than sexual touching – which is carried out in circumstances where a reasonable person would consider it to be sexual.

The section provides that the matters to be taken into account when deciding if the act is sexual include whether:

  • the area of the body involved in the act is the person’s genital area, anal area or – in the case of a female person, or a transgender or intersex person identifying as female – the person’s breasts, or
  • the defendant’s actions are for sexual arousal or sexual gratification, or
  • any other aspect of the act, or the circumstances surrounding the act, make it sexual.

An act is not considered to be sexual if it is done for genuine medical or hygienic purposes.

The definition makes it clear there does not need to be any touching for an act to be sexual.

Examples of sexual acts

Conduct which may constitute a sexual act includes:

  • masturbating in front of the complainant,
  • inciting the complainant to masturbate,
  • carrying out a simulated sexual act, or
  • inciting the complainant to carry out a simulated sexual act.

What are the penalties?

The maximum penalty for carrying out a sexual act is 18 months in prison.

The maximum penalty increases to two years if the offence was committed against a child who was at least 10 years of age but less than 16; see section 66DD.

The maximum is 7 years if the child was under the age of 10; see section 66DC.

It is important to bear in mind that these are maximums and the court can impose any of the following penalties for a sexual act:

However, and Intensive Correction Order is not available where the sexual act involved a person under the age of 16.

Defences

Defences to the charge of sexual act include duress, self-defence, necessity and lawful correction of a minor.

Going to Court?

If you have been charged with obscene exposure, sexual act or another sexual offence, call Sydney Criminal Lawyers anytime on 02 9261 8881 to arrange a free first consultation with an experienced defence lawyer who will review the allegations against you and advise you of the best way forward, as well as the likely outcome.

Author

Ugur Nedim

Ugur Nedim is an Accredited Criminal Law Specialist with over 20 years of experience as a criminal defence lawyer. He is the Principal of Sydney Criminal Lawyers®.

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