Non-Consensual Touching
This is exactly what happened recently to a senior public servant. That person’s conduct at a recent staff Christmas party was first reported as “inappropriate conduct” and in later reports as “unwelcome physical contact” in relation to a fellow female staffer. The term “unwelcome” is simply another word for non-consent.
Whilst there is no suggestion here that the public servant is question committed an assault I will talk about assaults that could arise at Christmas office parties. A common assault is an application of force to another without that person’s consent “unless justified or excused by law”.
Slapping someone on the back can theoretically constitute an assault. However, the law takes into account the circumstances surrounding the “application of force” or at the lowest level “touching”. For example, standing on crowded buses or trains or standing in ques waiting to be served.
Sometimes one cannot help touching another person in these circumstances – a moving carriage in the former examples and people shuffling along in the latter example can give rise to one person coming into contact with another person. Sound pretty silly but there have been cases where an aggrieved person has sought to have a person charged in exactly these circumstances.
What are the Consequences of an Assault?
Anyone convicted of an assault can usually expect to receive a fine – if the offending is at the lower end of the scale, it is a first offence and there are no aggravating factors for example. An assault can, however, very easily turn into an indecent assault* which if convicted can result in an immediate termination of imprisonment.
The question then is what constitutes an indecent assault? Firstly, there must be an unwelcome touching. Secondly, indecent is what is considered offensive to common propriety in the mind of the “ordinary decent people.”
Lawyers call this an objective test as opposed to what is referred to as a subjective test in which case it is whether the person doing the touching considered it indecent. Slapping someone on the bottom will usually ground an indecent assault. Given the nature of the objective test, it is easy to consider how the minds of “ordinary decent people” may have changed over the decades.
The point is a person can easily find themselves at the centre of criticism or far worse if another person complains that the conduct was unwelcome or worse still inappropriate. A person relying on having too much alcohol at the party, the fact it was a party and a time for having some fun or “I didn’t mean any harm” or “I was only joking” may not help at all.
In all cases, the question of consent to the touching must be raised and if it were the subject of a criminal trial then the prosecution must prove that there was no consent direct or implied. Implied consent is always raised at parties where everyone is usually upbeat and alcohol flows freely.
Keep Your Hands to Yourself
The point is that just because it is the Christmas staff party simply do not lose control of your senses. Keep your hands to yourself as invariably any contact these days can be deemed by the other person as unwelcome and you will soon find yourself out of job.
*There is no suggestion here that the public servant’s actions were indecent.
