Appeal against sexual assault conviction for smacking child’s bottom dismissed

The teen was alleged to have pulled down the younger boy’s trousers and underpants and smacked him several times
Appeal against sexual assault conviction for smacking child’s bottom dismissed

High Court reporters

The Supreme Court has dismissed, by a three to two majority, an appeal brought by a teenager convicted of sexual assault after he smacked a neighbouring child several times on the bare buttocks.

The teenager was convicted by a jury of one count of sexual assault on the male child, who was six-years-old at the time of the offence, following a trial at the Central Criminal Court in 2020. The accused was 14-years-old when the offence occurred in 2019 when the parties were playing in a field near their homes.

The teen was alleged to have pulled down the younger boy’s trousers and underpants and smacked him several times, leaving the child traumatised and vulnerable. The offence was dealt with by way of community sanction and the teen was placed under the Supervision of the Probation Services until 2023.

The conviction was upheld last year by the Court of Appeal (CoA). The matter came before the Supreme Court after it determined that an issue of public importance, namely if the prosecution is required to prove an intention to commit or sexual element in the offence on the part of the accused, had been raised.

Majority decision

In its majority decision, the Supreme Court dismissed the appeal. Mr Justice Peter Charleton held that the CoA had been correct in finding that the crime of sexual assault is a wholly objective one and that no evidence of sexual motive is necessary where it is shown that an assault took place in indecent circumstances. Ms Justice Iseult O’Malley and Mr Justice Brian Murray concurred with Mr Justice Charleton’s judgement.

Giving the court’s minority decision, Mr Justice Gerard Hogan said the teen’s conviction of sexual assault should have been set aside and one of assault imposed in its place. Mr Justice Séamus Woulfe concurred with his decision.

Mr Justice Charleton said there were three elements to the offence. The accused had intentionally assaulted the victim, he said and the assault and accompanying circumstances were proven on an objective standard to be indecent, and that the accused’s purpose was to assault in these indecent circumstances.

The judge said that if the Director of Public Prosecutions (DPP) had to consider an additional element of sexual purposes advocated by the teen, it would amount to a “fundamental alteration of criminal law”.

“Motive is not ever a component of crime but may be evidence which may help prove a crime or undermine proof of that crime,” Mr Justice Charleton said.

The judge held that the legal test when considering an allegation of sexual assault was entirely objective, requiring only that “non-consensual touching of a sexual nature which creates indecent circumstances”.

The judge added that this was “never a case where a lesser offence might be found”. While the motivation of the assault may be relevant to the sentence received, it cannot be relevant in determining the type of assault that took place, he said.

Mr Justice Charleton also noted in his judgement that the definition of sexual assault had not changed from when it renamed from the old common law offence of indecent assault in the early 1990s.

“A codification of sexual offences would greatly assist in reducing the potential for serious error in trials of this kind,” he added.

In his dissenting judgement, Mr Justice Hogan said there must be a requirement of sexual motive in ambiguous cases such as the one before the court.

When viewed objectively what happened in this case, he said, did not give rise to the inference that the teen committed an assault in circumstances of indecency. Given the ambiguity in this case, he said that the prosecution should have to point to other evidence from which an intention to commit sexual assault can be inferred.

The judge, who based his decision on relevant statutory developments in respect of the offence of sexual assault, also noted that it had been accepted that there was no sexual element to the teen’s conduct.

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