Case we are discussing…
Here’s a question: Person A “star jumps” into a group photograph and stands slightly behind Person B. As the photograph is about to be taken, person A pinches person B’s bottom while exclaiming “hope you don’t take this the wrong way!”
Did the pinch of the bottom constitute indecent assault?
That was essentially the question before a Western Australian Magistrate; and pursuant to an Appeal Application; ultimately before the Supreme Court of Western Australia in March 2019.
In this case, a police officer participating in a charity wheelchair basketball game claims to have wanted to lighten up the “serious” nature of the photograph and “light-heartedly” pinched another member on the basketball team (member of the public) to get a funny reaction out of her for the photo. His argument was that he did not intend to humiliate her and had really wanted to pinch the “fatty rib area” or the “love-handles” area rather than take a full-handed grab of the woman’s right butt cheek.
Her Honour, Magistrate Ridley found that whilst touching of the breast, vagina, penis, testicles or anus would be indecent; a pinch on the bottom is not really inappropriate in 2017 because “in an era of twerking (dancing whilst squatting and shaking one’s bottom provocatively) and grinding, simulated sex and easy access to pornography – the thought of a pinch on the bottom is almost reference to a more genteel time” (trust us; that paragraph (including Her Honours’ helpful description of twerking) were her Honour’s direct words and copied and pasted from the case itself)
Her Honour went on to say that a pinch on the bottom is conduct low enough on the level of seriousness not to warrant a mention and cited the use of a slap or tap on the bottom in the sporting field as an example of how in fact it carries connotations of congratulations and encouragement! Her Honour concludes that whilst the act can be capable of being indecent, it was not inherently so and consideration must be taken of the circumstances surrounding the pinch – including the persons’ intention, motive and placement of the pinch (near the anus or outer side of the bottom?)
The grounds for appeal were that the Magistrate had failed to find that the assault occurred to a part of the body that gave way to sexual connotations and that the act (pinching people’s bums) offended contemporary standards of decency and propriety.
On appeal, the court found that whilst the police officers’ actions were inappropriate; he did not commit the act for sexual gratification and therefore the act was not indecent. (so in other words; they found he wasn’t sleazy but just a fool).
On the subject of whether a pinch on the bottom offends community standards; the Supreme Court sided with the Magistrate in finding that whilst in decades past, the act was considered of a “naughty” nature and constituting sexual conduct; in contemporary society touching the bottom is seen less but for in the sporting fields and does not inherently carry with it sexual connotations.
Ultimately, the Supreme Court found that the Magistrate did not err in her findings and dismissed the appeal.
Government resource we’re recommending…
The Domestic Violence Unit of Legal Aid NSW has launched a new website that covers ADVO, family law and child protection. Each web page covers a range of frequently asked questions and provides practical advice. The information can also be downloaded and easily translated into more than 20 languages.
Netflix show we are binge watching…
We recently discovered that Netflix has a wonderful assortment of international movies and TV series’ available for your viewing. Ally can’t stop harping on about an Egyptian TV series, Disappearance. Disappearance is a 30-part series which tells the story of Farida, an Egyptian academic who lives and works in Moscow. While she is there, she receives news that her husband, whom she had left in a coma over a year ago, and whom she assumed was dead, was actually awake, well and giving press conferences for an investigative piece he had been working on while he recuperated.
In the book, which is ready for publishing, he accuses a very important Egyptian business man of a murder committed over 50 years earlier. Upon hearing of her husband’s non- comatose state, Farida travels to Egypt only to learn that her Husband has since disappeared and so starts her journey to uncover the truth of her husband’s story and figure out what has happened to him.
Podcast we are loving…
Following on from our previous recommendation for Dirty John, the Netflix series that began as a podcast by Wondery, we again recommend a Wondery podcast original, Over my dead Body. Over my dead body tells the not-so-happy tale of Dan Markel and Wendy Adelson. Dan and Wendy, both from affluent Jewish families and both lawyers, seemed to have it all. That was until Dan returned home one day to find his wife and his two boys were gone and in their place Wendy had left divorce papers. A very bitter custody battle ensued and on the morning of 18 July 2014 Dan was talking to a friend on his phone. As he pulled into his garage he said ‘Hold on a minute, Someone I don’t know is in my driveway’. Within seconds he was shot in the head. Dan died later in the hospital.
Police were left to put together the pieces of a twisted tale- involving the Adelson’s and members of the Latin Kings gangs. The case remains unsolved.
Video that took our breath away…
‘And so I wish you that you would open your heart to all these blessings and let them flow through you, that everyone whom you will meet on this day will be blessed by you. Just by your eyes, by your smile, by your touch. Just by your presence. Let the gratefulness overflow into blessings all around you. Then it will be a really good day’.
Do yourself a favour and watch it here: Gratitude by Louis Schwartzberg.