Can Masturbating in Public Amount to a Sexual Act Charge in NSW?

By Sahar Adatia and Jimmy Singh.

It is reported that on 12 August 2019, a man who was accused of masturbating in his car in a Perth shopping centre carpark was fined $1,500 for his sexual act.

According to Fremantle Gazette Community News, Michael Wallace was sitting in his car in the southern suburb of Cockburn when he sighted an “attractive woman” entering the vehicle next to him.

The 60-year-old man then performed crudely, believing he would go unnoticed because his vehicle had tinted windows.

Mr Wallace was caught in the act in his parked car on Beeliar Drive.

Had had driven off before police were able to catch up to him.

The Plea Mr Wallace Gave in Fremantle Magistrate’s Court

Mr Wallace appeared at Fremantle Magistrate’s Court and pleaded guilty to his obscene public act.

His lawyer, Andrew Williams, said it was only when the woman drove off that Mr Wallace “commenced the actions”.

7News reports that magistrate Nicholas Lemmon said he believed the incident was “opportunistic” and not “premeditated.”

As such, he fined Mr Wallace $1,500, along with $205 in court costs.

In Perth, the maximum sentence is nine months in prison or a fine of $9,000.

The act of masturbating in such circumstances in NSW amounts to the crime of a sexual act, obscene exposure and offensive conduct each carrying heavy penalties.

Can Masturbating in Public Amount to a Sexual Act Charge in NSW?

The offence of a sexual act is a relatively new addition to the Crimes Act in NSW.

The offence of a sexual act is reflected in section 61KE Crimes Act 1900 (NSW) which carries imprisonment of up to 18-months and/or $5,500 fine.

The maximum penalty is 24-months imprisonment if the victim is aged 10 to 15-years-of-age.

The penalty increases to 7-years imprisonment if the victim is aged 10-years or younger.

The offence will result in a criminal conviction unless the Court exercises it’s discretion to impose a non-conviction section 10 penalty, which will otherwise result in no criminal conviction being recorded against the offender, even after pleading guilty.

It was introduced in December of 2018, which prohibits a person from intentionally committing an act either towards or with another person; where that other person doesn’t consent and the person committing the act was aware that the other person wasn’t consenting, provided a reasonable person would regard the act as sexual.

When a court determines whether a reasonable person regards the alleged sexual act as sexual, the court will consider factors such as, circumstances the act was done in, the acts itself, whether the ac was committed for sexual gratification and the part(s) of the body used.

Defences to a charge of sexual act in NSW include, self-defence, involuntary act of the accused, where the act occurred incidentally from ordinary exigencies of every day life, where the act was committed for a genuine medical purpose, or where the accused honestly and reasonably held the belief that the alleged victim consented.

Can Masturbating in Public Amount to Obscene Exposure and Offensive Conduct in NSW?

Generally speaking, obscene exposure constitutes any kind of conduct in public that is likely to offend or upset the standards of decency that are currently held by community standards.

So, if you expose a part of your body, including your genitals, within view or in a public place or school, and that exposure violates the current standards of decency in the community, your conduct will be fall into the category of being obscene.

Accordingly, behaviour such as flashing, streaking at an event, or sexual conduct that is carried out in public, is deemed to be obscene by the community and the courts.

This includes masturbating in public.

Similarly, masturbating in public or within view of public can amount to offensive conduct if it’ considered to wound the feelings, arouse anger, or resentment or disgust or outrage in the mind of a reasonable person.

Accordingly, the maximum penalty for obscene exposure in NSW is 6-months imprisonment and/or $1,100 fine under section 5 Summary Offences Act 1988 (NSW).

The maximum penalty for offensive conduct in NSW is 3-months imprisonment and/or $660 fine under section 4 Summary Offences Act 1988 (NSW).

Had the man masturbated in view of public from his vehicle in NSW, he would have likely been charged with the above offences regardless of whether he believed that his car was too tinted to be viewed from outside.

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