What is sexual touching?
Sexual Touching is an offence under the Crimes Act 1900. This offence replaced the former offence of indecent assault, following reforms to NSW sexual offence laws in 2018.
A person commits the offence if they intentionally sexually touch another person without that person’s consent, while knowing that the other person does not consent. Additionally, one may also be charged with sexual touching if they force the complainant to touch them, incite a third person to sexually touch a complainant, or incite the complainant to sexually touch a third person.
The meaning of sexual touching is outlined in 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 the person doing the touching or by the person being touched
in circumstances where a reasonable person would consider the touching to be sexual.
The matters to be taken into account in deciding whether a reasonable person would consider touching to be sexual include:
- Whether the area of the body touched or doing the touching is the person’s genital area, anal area or breasts, whether or not the breasts are sexually developed, and regardless of the person’s gender or sex, or
- Whether the person doing the touching does so for the purpose of obtaining sexual arousal or sexual gratification, or
- Whether any other aspect of the touching (including the circumstances in which it is done) makes it sexual.
Beating the charge
To be found guilty of sexual touching, the prosecution must prove beyond a reasonable doubt that:
- The accused intentionally sexually touched another person, or incited another person to engage in sexual touching,
- The other person did not consent to the touching,
- The accused knew the other person was not consenting.
At least one element must be proven by the prosecution.
Common issues that arise in defence to sexual touching cases include:
- Whether the touching occurred,
- Whether the touching was sexual in nature,
- Whether the complainant consented,
- Whether the accused could reasonably believe the other person was consenting,
- Whether the accused was acting freely, or whether there was any form of duress.
Read more about wrongful sexual assault allegations here.
Penalties
The maximum has been identified as imprisonment for 5 years, under section 61KC of the Crimes Act 1900 NSW.
Additionally, the minimum penalty for aggravated sexual touching is 7 years imprisonment, identified under section 61KD of the Crimes Act 1900 NSW.
Aggravating circumstances may include:Â
- The offender is in the company of another person,
- The victim is under the authority of the offender,
- The victim has a serious physical disability,
- The victim has a cognitive impairment.
The court may also impose other penalties such as:
- Conditional Release Order without Conviction (section 10),
- A fine,
- Conditional Release Order with Conviction,
- Community Correction Order,
- Intensive Correction Order.
- Imprisonment
Where the victim is a child, significantly higher maximum penalties apply.
Pleading guilty
If a person accepts that the offence occurred and the evidence is strong, it may be advisable to enter a guilty plea.  The courts must consider the seriousness of the conduct, evidence of remorse, the offender’s criminal history and the circumstances surrounding the offence.
Do I need references?
We believe references are an extremely important part of a plea of guilty in court. Read about court processes and how to write a good character reference. Â
Why choose Australian Criminal Law Group?
Our criminal lawyers are experts at obtaining the best outcome possible for sexual touching offences. For these offences, a good lawyer can be the difference between a conviction and no criminal record and freedom or jail. To read more about Australian Criminal Law Group, click here. To discuss your sex, call Australian Criminal Law Group at our Sydney, Parramatta, and Blacktown offices or make a website inquiry today.