Sexual Touching: Strategic Legal Guidance. Contact UWE Today

Sexual touching occurs when a person intentionally touches another person in a sexual way without their consent and knowing they are not consenting. The prosecution must prove each of these elements beyond a reasonable doubt.

The offence falls under section 61KC of the Crimes Act 1900 (NSW) and carries a maximum penalty of 5 years imprisonment.

The offence can also be committed where a person incites (causes) the victim to touch the offender or incites sexual touching with a third person.

The offence was introduced on 1 December 2018 and replaces the offence of “indecent assault”. If the alleged act occurred before 1 December 2018, then the old legislation applies.

Importantly, sexual touching is not limited to direct skin-to-skin contact. The statutory definition in section 61HB can capture touching with a body part or another object, as well as touching through clothing or another material. This means a sexual touching offence can arise from a wider range of conduct than many people assume. Whether particular conduct meets the legal definition depends on the nature and circumstances of the touching, together with the applicable consent requirements.

Section 61HB of the Crimes Act 1900 (NSW) defines sexual touching broadly. It can involve one person touching another with any part of the body or with an object. The key question is whether a reasonable person would consider the touching to be sexual in the circumstances. The law identifies several factors that may be relevant to that assessment:

• Whether the area touched, or the body part doing the touching, is a person’s genital area, anal area or breasts.
• The person’s purpose may also matter, including whether the touching was done to obtain sexual arousal or sexual gratification.
• Other surrounding circumstances can also make otherwise ambiguous touching sexual.

Touching carried out solely for proper medical or hygienic purposes is expressly excluded from the definition

It is important that you get advice which is tailored to your circumstances. However, we generally recommend the following:

• Do not speak with the police regardless of what promises or threats are implied. In the vast majority of cases, it is better to remain silent.
• Do not speak with the complainant or anyone else about the matter. Anything you say can be used against you in Court.
• Be mindful of police surveillance. Police will often arrange for an alleged victim to contact the accused and then monitor the conversation for potential incriminating comments. This is referred to as a “pre-text call”.
• Consider whether there is any evidence that might be helpful, such as CCTV footage, social media communications or favourable witness testimony. All evidence should be secured as soon as possible, particularly CCTV which is often overwritten.
• Prepare emotionally for a long and often stressful process. The time from being charged to standing trial in the District Court is typically 18 months. In the Local Court matters are more commonly dealt with in 9 months.

For a person to be found guilty of a sexual touching offence under section 61KC of the Crimes Act 1900 (NSW), the prosecution must establish each required element of the offence beyond reasonable doubt.

1. The relevant touching or incitement occurred. The prosecution must prove that the accused sexually touched the complainant or intentionally incited the complainant or another person to engage in the relevant sexual touching.
2. The conduct was intentional. Accidental or unintended touching will not satisfy this element. The prosecution must prove the accused intentionally engaged in the conduct alleged.
3. The touching was sexual. The conduct must meet the legal definition of sexual touching, including the requirement that a reasonable person would consider the touching sexual in the circumstances.
4. The complainant did not consent. The prosecution must establish that the complainant did not freely and voluntarily agree to the sexual activity.
5. The accused knew the complainant did not consent. The prosecution must also prove the required state of mind concerning the complainant’s lack of consent.

Under section 61HI of the Crimes Act 1900 (NSW), a person consents to sexual activity when, at the time of that activity, they freely and voluntarily agree to it. Consent must relate to the particular sexual activity taking place and cannot simply be assumed from previous activity or a previous occasion.

• A person must say or do something to communicate consent.

• The absence of physical or verbal resistance does not, by itself, amount to consent.

• Consent can be withdrawn at any time through words or conduct.
• Any sexual activity that continues after consent has been withdrawn occurs without consent.

• Consent to one sexual activity does not automatically mean consent to another sexual activity.

• A person does not consent if they lack capacity, are unconscious or asleep, or are so affected by alcohol or another drug that they are incapable of consenting.

• Consent may also be absent where a person participates because of force, fear of serious harm, coercion, blackmail, intimidation, unlawful detention or an abuse of a relationship of authority, trust or dependence.

• Consent may be absent where participation results from certain mistaken beliefs, including about the nature or purpose of the activity, the other person’s identity or marriage to that person, or because of fraudulent inducement.

Section 61HK deals with knowledge of non-consent. An accused person is taken to know there was no consent if they actually knew; were reckless as to whether the complainant consented; or any belief they had in consent was not reasonable in the circumstances.

Importantly, a belief in consent is generally not reasonable if the accused did not say or do anything, within a reasonable time before or at the time of the sexual activity, to find out whether the other person consented.

Yes, but NSW law distinguishes sexual assault from a separate offence of sexual touching. Under section 61I of the Crimes Act 1900 (NSW), sexual assault requries sexual intercourse without consent and knowledge of non-consent.

Unwanted sexual touching that does not amount to sexual intercourse may instead be charged under section 61KC, depending on the facts and circumstances of the case.

The test is whether a “reasonable person” would consider the touching to be sexual: section 61HB Crimes Act 1900 (NSW).

If the genitals, anus or breasts were touched it is almost certainly sexual touching. Another factor is whether the accused was seeking sexual arousal or gratification.

The sexual touching can be done by any by any body part or object, and can be on the outside of the clothing.

Touching for genuine medical or hygienic purposes is not sexual touching.

The prosecution must prove beyond a reasonable doubt that the alleged victim did not consent, and that the accused knew the complainant did not consent to the sexual touching. It is therefore important to understand what consent is.

Some important points about consent are as follows:

• A person consents to a sexual act if they freely and voluntarily agree to the sexual activity: Section 61HI Crimes Act 1900 (NSW).
• The absence of physical resistance does not mean a person is consenting.
• A person cannot consent if they lack capacity, are unconscious, or are being threatened.
• A person does not consent if they do so under a mistaken belief as to the identity of the other person, that they were married, or that the sexual contact was for health or hygienic purposes.
• Consent can be withdrawn at any time.
• A person may not be consenting if there is substantial intoxication, intimidation or abuse of a position of authority or trust.
• An accused is taken to know the other person does not consent if they are reckless about whether there is consent, or have no reasonable grounds for believing there is consent.

The court will have regard to all of the circumstances of the case including the steps taken by the person to confirm whether the alleged victim consents to the sexual touching.

It is a defence to sexual touching:

• If the alleged victim consented to the sexual touching
• If the accused person holds an “honest and reasonable belief” that the alleged victim was consenting. This is known as the Proudman v Dayman
• If the sexual touching was done for genuine medical or hygienic purposes

Sexual touching is an indictable offence which means it can be dealt with in either the Local Court or the District Court. In the Local Court the matter is determined by a Magistrate alone. In the District Court the matter is determined by a jury of 12 with a Judge presiding over the proceedings.

It is preferable from a defence perspective to have the matter dealt with in the Local Court because the maximum penalty is 2 years imprisonment and there is a right of appeal to the District Court if you are found guilty.

If either the prosecution or accused “elects” to have the matter dealt with in the District Court, then it must be dealt with in the District Court.

Generally, allegations of sexual touching that are more objectively serious are dealt with in the District Court.

Aggravated sexual touching is punishable by 7 years imprisonment: section 61KD Crimes Act 1900 (NSW).

Sexual touching is “Aggravated” where there is one of the following additional elements:

• The offender is in the company of a third party
• The alleged victim is under the authority of the offender
• The alleged victim has a serious physical disability or a cognitive impairment

Sexually touching a child is punishable by 10 years imprisonment if the child is between 10 and 16 years of age, and 16 years imprisonment if the child is under 10 years of age: Sections 66DB and 66DA Crimes Act 1900 (NSW).

Sexually touching a child under 10 years of age carries a “standard non parole period” of 8 years imprisonment. This is the expected minimum period of imprisonment for a middle range objective seriousness offence, before taking into account any of the subjective or personal circumstances of the offender.

If the accused person is an adult, it is not a defence that a child under the age of 16 consented to the sexual touching. However, it is a defence to sexually touching a child between the age of 10 and 16 years of age, if the alleged victim is above the age of 14 years and the age difference between the alleged victim and the accused person is no more than two years: section 80AG Crimes Act 1900 (NSW).

Whether or not a person is sentenced to imprisonment involves consideration of many factors. It is not uncommon for people with no criminal history to avoid gaol for sexual touching and aggravated sexual touching. However, if the offence is committed against a child, then gaol is close to inevitable.

One of the obstacles to avoiding gaol is that an “Intensive Corrections Order” is not an available sentencing option. The means that the court would have to be persuaded to deal with the matter under a “Community Corrections Order”, which could be considered too lenient.

In appropriate cases an early guilty plea, following successful negotiation of facts and charges, and careful preparation of documents such as counselling reports, can be the difference between going to gaol and not.

A person convicted of sexually touching a child will become a registrable person under the Child Protection (Offenders Registration) Act 2000 (NSW). Upon registration they become subject to various reporting obligations. The police may seek further restrictions about where the person lives, works or travels. The registration will last for a period of 8 or 15 years depending on the nature of the offending.

Probably not. Most countries will not allow people convicted of sexual offences to enter.

It is a criminal offence for an Australian citizen, whose name appears on a child protection register with reporting obligations, to leave Australia without permission: division 271A Criminal Code Act 1995 (Cth).

Additionally, registered sex offenders cannot travel out of New South Wales without permission from the authorities.

If you are found guilty then yes. The Criminal Records Act 1991 (NSW) provides that a conviction for sexual touching (and most other sexual offences) is not capable of being spent. This means that it will remain a disclosable offence on your National Police Check forever.

If you are under investigation or have been charged with a sexual touching offence, contact Uther Webster & Evans to arrange a confidential consultation with an experienced criminal defence lawyer today.