Have you been charged with the offence of Sexual Touching?
Sexual Touching is a new offence in NSW under section 61KC of the Crimes Act 1900. In December 2018, the offence of sexual touching replaced the previous offence of Indecent Assault.
“Sexual Touching” describes the act of having sexual and non-consensual physical contact with another person. This conduct is against the law. Whilst sexual touching is a lesser offence than sexual assault, the courts take this conduct very seriously.
The maximum penalty for the offence is 5 years full time imprisonment in the District Court, or 2 years if the matter remains in the Local Court. Under section 61KD of the Crimes Act, an aggravated form of this offence carries a maximum penalty of 7 years full time imprisonment. Higher penalties apply where the complainant is under the age of 16 years.
What is Sexual Touching?
Under Section 61KC of the Crime Act, sexual touching occurs when any person intentionally:
- Sexually touches the alleged victim, or
- Incites the alleged victim to sexually touch the person, or
- Incites a third person to sexually touch the alleged victim, or
- Incites the alleged victim to sexually touch a third person,
without the consent of the alleged victim and knowing that the alleged victim does not consent.
Sexual touching is defined under Section 61HB to mean a person 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.
Will I be found guilty of Sexual Touching?
To be found guilty, the police must prove the following elements beyond reasonable doubt:
- That you touched or caused another person to touch the alleged victim
- That the touching was sexual
- That this act was intentional
- That there was no consent given for the touching, and that you were aware that consent was not given, or you were reckless as to whether consent was given
Can I defend a charge of Sexual Touching?
If you believe that an essential element of the offence as set out above can not be proved by the police beyond a reasonable doubt, you may have a defence.
If you had a reasonable belief that the alleged victim consented to the sexual activity at the time of the offence, you may be able to defend the charge.
Other possible defences include duress, necessity, medical and self-defence.