Sexual Touching Offence NSW

As of December 2018, the offence of sexual touching was introduced to replace the offence of ‘indecent assault’ in NSW.

This change was made, amongst other reforms, to better protect individuals by law against non-consensual physical contact of a sexual nature with another person.

As with all sexual offences, the charge of sexual touching is taken extremely seriously within the NSW criminal justice system. If you have been charged with a sexual touching offence, it is integral that you you contact expert criminal lawyers such as the team at Hamilton Janke Lawyers to ensure you receive the best outcome in your case.

Definition of ‘Sexual Touching’

‘Sexual touching’ is defined by Section 61HB of the Crimes Act 1900 (NSW) as touching another person with any part of the body or with anything else, or through anything, including anything worn by either person, in circumstances where a reasonable person would consider the touching to be sexual.

A ‘reasonable person’ is generally accepted to refer to a hypothetical person who demonstrates average judgement or skill.

The section provides that the matters to be taken into account when deciding if touching is sexual include whether:

  • the area of the body touched or doing the touching is the person’s genital area, anal area or – in the case of a female person, or a transgender or intersex person identifying as female – the person’s breasts, or
  • the defendant’s actions are for sexual arousal or sexual gratification, or
  • any other aspect of the touching, or the circumstances surrounding the touching, make it sexual.
  • Touching is not sexual if it is carried out for genuine medical or hygienic purposes.

The Legislation

Sexual Touching is a criminal offence in NSW, as outlined under section 61KC of the Crimes Act 1900. This legislation states, 

Any person who, without the consent of another person and knowing that the complainant does not consent intentionally:

(a) sexually touches the complainant, or

(b) incites the complainant to sexually touch the accused person, or

(c) incites a third person to sexually touch the complainant, or

(d) incites the complainant to sexually touch a third person,

is guilty of an offence.

Aggravating Circumstances

Section 61KD outlines the offence of ‘Aggravated sexual touching’ referring to sexual touching that occurs in circumstances of aggravation. The circumstances of aggravation can include when: 

  1. The accused person is in the company of another person or persons, or 
  2. The complainant is (whether generally or at the time of the commission of the offence) under the authority of the accused person, or 
  3. The complainant has a serious physical disability, or 
  4. The complaintant has a cognitive impairment

 

Those found guilty of a charge of aggravated sexual touching are liable to a maximum custodial sentence of 7 years imprisonment.

Penalties

Any person found guilty of the offence of sexual touching in NSW is liable to a maximum penalty of 5 years imprisonment. If the offence was committed against a child aged 10-16, the maximum penalty is 10 years imprisonment. This period increases to 16 years if the child is under the age of 10. 

However, whilst these are the maximum penalties, courts have the discretion to impose any of the following penalties: 

  • Section 10 Dismissal 
  • Conditional Release Order 
  • Fine 
  • Community Correction Order 
  • Intensive Correction Order 
  • Imprisonment

Going to court

In which court will Sexual Touching charges be heard?

Sexual touching matters may be heard in either the local court or the district court. If the matter is heard in the local court, it will be heard before a magistrate who will determine the guilt or innocence of the accused whilst the matter is to be heard before a judge and 12 jurors if it is heard in the district court. If the case is heard in the local court, the maximum penalty is capped at 2 years imprisonment for an individual offence.

Defences

If you have been charged with sexual touching, and believe there is a legitimate excuse for this behaviour, you may be able to exercise a legal defence which, if successful, can result in a lesser charge or an acquittal. The team at Hamilton Janke Lawyers is highly experienced in successfully defending individuals against sexual touching charges, and will be able to provide you with expert advice on possible defences applicable to your circumstances. These may include: 

Consent; S. 61HA of the Crimes Act 1900 (NSW) defines consent to mean the person freely and voluntarily agrees to sexual activity. In other words, consent is an agreement between participants to engage in sexual activity that should be clearly and freely communicated, such as a verbal and/or affirmative expression of consent. In order to successfully raise the defence of ‘consent’, the defence must be able to prove the other person freely and voluntarily agreed to the sexual touching. 

Duress; The accused was coerced or threatened into sexually touching someone against their consent. 

Medical; Sexual touching is not illegal if it was done for genuine medical or hygienic purposes, for example, during a breast examination.

Pleading Not Guilty

If you disagree with the charges made against you, you have the option to plead not guilty. Upon entering a not-guilty plea,the prosecution must prove the elements of the offence beyond a reasonable doubt for you to be found guilty of this offence. 

If you choose to enter a not-guilty plea, the matter will likely proceed to a hearing or trial in which your case would be heard before a magistrate or a judge and jury of 12 citizens. This allows you and your lawyer to provide raise a defence to the charges made against you if you choose to do so. In these circumstances, an experienced criminal lawyer is necessary to guide you through the criminal proceedings and ensure you receive the best outcome. 

Our team at Hamilton Janke Lawyers can offer expert advice and 24/7 support during this time. We can advise on the various possible defences to sexual touching charges that may be applicable to the individual circumstances.

Pleading Guilty

If you agree that you have committed the offence, and the prosecution can prove the elements of the offence against you, you will likely receive the best outcome from pleading guilty at an early stage in the proceedings.

Pleading guilty to a sexual touching means that you agree that you engaged in the elements of the offence presented by the police and ODPP. Amongst other things, you are acknowledging that the victim did not consent to the sexual intercourse, touching or act. Pleading guilty at an early stage in the proceedings provides the greatest opportunity for a mitigated sentence, with the current maximum discount available for an early plea being 25%. There may also be other discounts available on sentence for providing assistance to authorities, amongst other things.

Burden of Proof

As a criminal matter, the burden of proof for sexual touching rests with the prosecution, and they must prove all the elements of the offence beyond a reasonable doubt for the accused to be sentenced. 

 

For a person to be guilty of sexual touching, the prosecution must establish each of the following matters:

  • That the defendant touched the complainant or incited another to do so,
  • That the touching was sexual,
  • That consent was not given to the touching, and
  • That the defendant knew consent was not given, or was reckless as to whether consent was given.

If the prosecution is unable to prove all of these elements beyond a reasonable doubt, the accused will be found not guilty and any charges made against you will be dismissed.

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