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499 Chapter 19 Sexual Offences Sexual offences are those having sexual gratification as the offender’s predominant or overt motivation in their commission. Some of these offences take the form of sexual aggression, consisting as they are of injury and affront to a non-consenting person (e.g., private indecency, rape). Others are breaches of sexual taboo, and are punishable even if the other party gave consent. Examples of this group of sexual offences are immoral earnings, prostitution, homosexuality, sodomy, bestiality, indecency with young people, and intercourse with severely subnormal persons such as idiots, imbeciles and morons. By s. 295 (1) “whoever in any place, notwithstanding that it may not be open to the public, commits an indecent act in the presence of any person of either sex and without his consent shall be punished.” The prescribed penalty is imprisonment for from fifteen days to two years and/or a fine853 . Any place. The place where the offence is committed is immaterial. The section speaks of ‘any place’, that is, a public or a private place. That being the case the additional group of words ‘notwithstanding that it may not be open to the public’ is redundant though the phrase may, arguably, have been added merely for emphasis. The victim of the offence is the person in whose presence the indecent act was committed. Private.The crime is denoted as ‘private indecency’ not because of any requirement that it must have taken place in private. The question of privacy of the place (the nature of the place, the likelihood of third parties coming upon the scene, the time of the act) is, as already observed, immaterial. The private nature of the offence refers not to the place or time of the act but to the number of persons involved. The act will not be treated as ‘private indecency’ where more than two persons take part or are present. Dual offence: person of either sex. The crime is a dual offence. It is capable of being committed by a man or a woman in the presence of a woman, or by a man or woman in the presence of a man. Indeed, the offence is capable of 853 Of from 10.000 to 100.000 francs. The penalty is doubled where the offence was committed under any of the following circumstances: the indecent act was accompanied by physical assault, the offender had authority over the victim, the offender has by statute or custom custody of the victim, the offender is a public servant or minister of religion, the offender was helped by one or more others in the commission of the offence. See, sections 295(2) and 298. 500 being committed by one spouse against the other, that is, one spouse can be convicted of committing an indecent act in the presence of the other spouse. Consent relevant to liability as part of the physical element. Consent negatives a charge for private indecency. Absence of consent here is not simply a defence. It is an element of the actus reus of the offence, which the prosecution must prove. The offence is consummated only if the alleged victim did not consent to the indecent act being committed in his presence. Consent may be implied as where two people undress in a common changing room in order to change clothes or where they undress in a common shower room or a common bathing place in a stream to bathe or where a patient undresses in front of his treating doctor for a physical examination or a striptease in a night club or a client before a masseuse. Indecency to a child under sixteen is a separate crime eo nomine under s. 346 and, there, the question of the victim’s consent is irrelevant. Further, indecency to any minor between the sixteen and twenty-one age bracket is also a separate crime eo nomine under sections 347. It is therefore submitted that section 295 is confined to cases where the non-consenting party is a person above twentyone years of age. Accordingly, the phrase ‘any person of either sex’ in section 295(1) should be read to mean any adult person of either sex. Where the victim, though an adult (i.e., aged over twenty-one) is a severely subnormal person (an idiot, an imbecile, a moron) or even a lunatic and he ‘consented’ to the indecent act the proper defence open to the accused is not consent (for the insane or the severely...

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