A person who commits an act of gross indecency with or in the presence of any person under the age of 16 years is guilty of an offence.
A person who incites or procures the commission of an act of gross indecency will be party to the commission of any act and also guilty of an offence.
A person will be guilty of an offence regardless of the act being committed in private or public.
"Indecency" has been defined in various cases to include "any act which an ordinary decent person would find shocking, disgusting, or revolting however it needs to have a sexual overtone or nexus. No contact is essential and it has been held that it is a matter for the jury as a question of fact as to what should constitute indecency".
What court will hear the matter
This matter will be dealt with in the District Court of South Australia.
What the prosecution must prove
The prosecution must prove that:
- the act was of gross indecency in the presence of a child; or
- the defendant procured another to commit an act of gross indecency in the presence of a child.
There are a range of possible defences including, but not limited to, the following:
- mental impairment
- identification dispute.
Consent is not a defence under the relevant provision of the legislation.
The maximum penalty for a first offence of gross indecency is 3 years imprisonment while the maximum penalty for any subsequent offence is 5 years imprisonment.