Sexual Touching is an offence in NSW under section 61KC of the Crimes Act. The sexual touching offence has replaced the previous offence of Indecent Assault as of 1 December 2018. The offence carries a maximum penalty of 5 years full time imprisonment.
Section 61KD creates an aggravated form of the offence. This carries a maximum penalty of 7 Years.
What constitutes a Sexual Touching Offence?
Sexual touching is where a defendant, without the consent of the victim does one of the following:
- sexually touches the alleged victim, or
- incites the alleged victim to sexually touch the alleged offender, or
- incites a third person to sexually touch the alleged victim, or
- incites the alleged victim to sexually touch a third person
A Sexual touching offence is defined in the crimes act under section 61HB 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.
In determining if a reasonable person would consider touching to be sexual the court takes into account:
- whether the area of the body touched or doing the touching is the person’s genital area or anal area or (in the case of a female person, or transgender or intersex person identifying as female) the person’s breasts, whether or not the breasts are sexually developed; 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.
What must the Police Prove
To be found guilty of an offence of sexual touching the police must prove the following:
- That you engaged in or caused another person to engage in an act of sexual touching
- That this act was intentional
- That there was no consent given for the act and that you were aware that there was no consent or you were reckless as to whether consent was given
For an aggravated offence the police must in addition prove one of the following:
- you were in the company of another person or persons; or
- the alleged victim is (whether generally or at the time of the commission of the offence) under the authority of the you; or
- the alleged victim has a serious physical disability; or
- the alleged victim has a cognitive impairment.
Possible defences for Sexual Touching
It is always a defence where you believe that an essential element of an offence can not be proved by the prosecution some specific defences to this type of offence include:
Consent
In matters involving unlawful contact including sexual offences it will be a defence where the other party has consented to the contact.
Consent is extensively defined under section 61HE of the Crimes Act 1900. Consent is given when a person willingly, freely and voluntarily consents to sexual activity. Consent does not have to be given verbally, it can also be expressed through actions. Similarly a complainant does not have to verbally state that they do not consent. Consent by persuasion is still considered as consent as long as it’s given voluntarily.
For the accused to be found guilty of the offence they have to have knowledge that there is no consent. The accused knows that the complainant does not consent to the sexual activity if they:
- Knew that the complainant did not consent to the sexual activity, or
- Were reckless as to whether the complainant consented to the alleged sexual activity, or
- Had no reasonable grounds for belief that the complainant consented to sexual activity.
It is a defence if the accused had a reasonable belief that the complainant had consented to the sexual activity.
This question goes to the accused’s state of mind at the time of the offence. If the court when looking at all the evidence concludes that the accused reasonably and genuinely, although wrongly, held the belief that there was consent then the accused cannot be found guilty of the offence.
Medical
It is a defence to a charge of Sexual Touching where the touching occurred as part of a medical procedure. An example of this would be a breast examination. TO successfully raise this defence there must have been a legitimate medical reason for the touching
Duress
It is a defence to many offences where the offending conduct was done due to Duress. Duress is where an offender is placed in a situation where they have no choice other than to commit an offence due to serious threats to either them or their family.
The defence of duress involves 3 critical elements. A person will not be held criminally responsible for an offence if the offence was committed:
- Because of threats of death or really serious injury to him or herself or to their family, and
- Those threats being of such a nature that a person:
- Of ordinary firmness and strength of will
- Of the same maturity and sex of the accused, and
- In the accused’s position,
- Would have given in to the threats and committed the offence
Element 1:
When looking at the first element, the question is whether a threat was made, and if so, what led the accused to believe the threat would be carried out. These threats may be made expressly or impliedly. It does not matter if there is no real threat to the person or family. What matters is whether the person held a genuine belief that there is an imminent threat of death or serious injury to his or her self or family if he or she did not do what was demanded of them.
Element 2:
The second element is an assessment of the circumstances surrounding the threats. When considering this element the court will have regard to, among others, the nature of the threat, the person making the threat, the accused’s knowledge of the person making the threat and all circumstances which may affect a reasonable person’s reaction to the threats.
Essentially the test for this second element is if you place an ordinary and reasonable person of the same maturity and sex of the accused in the exact same set of circumstances posed to the accused, would that reasonable person succumb to those threats and commit the offence.
Element 3
When assessing the third element, the question is whether there are any other alternatives other than committing the offence. A person will not be able to raise the defence of duress even if they held a reasonable belief that the threats would be carried out if he or she could have avoided the threats by alternative means other than committing the offence.
If the prosecution disproves any of the three elements listed above then that the defence will not be made out. If they are unable to disprove any of the elements then offender should be found not guilty.
Penalties for Sexual Touching NSW
Sexual touching is a new offence in NSW having replaced the old offence of indecent assault. The penalty that a court would impose would greatly depend on the specific circumstances surrounding the touching.
The Court may impose any of the following conditions:
Conditional Release Order
Conditional Release Orders (CRO) are often used to deal with first time offenders and less serious offences where the offender is unlikely to present a risk to the community.
A CRO is an order of the court that you are to be of good behaviour (not commit any other offences) for a specific period of time.
CROs can include conditions such as drug and alcohol abstention, requirements to attend programs, non-association requirements or place restrictions where appropriate. CROs can also have a supervision condition. Courts have discretion to not impose a conviction on a CRO, if they consider it appropriate. CROs can be for a maximum period of 2 years.
The CRO acts as a warning and provides the option to divert less serious offenders out of the criminal justice system, freeing up resources to deal with the offenders who cause the greatest concern to the community. If an offender commits any further offences while on a CRO, subsequent penalties may be more severe.
Community Corrections Order
Community Correction Order’s (CCO) are used to punish offenders for offences that do not warrant imprisonment or an Intensive Corrections Order, but are too serious to be dealt with by a fine or lower level penalty.
CCO’s are a flexible sentence that the court can tailor to reflect the nature of the offender and the offence. The court can select from the range of conditions, such as supervision by Community Corrections Officers, community service work (up to 500 hours) and curfews, to hold offenders to account and reduce their risk of reoffending. CCOs can be imposed for a period of up to three years.
Intensive Corrections Order
An Intensive Corrections Order (ICO) is a custodial sentence that the court decides can be served in the community. Community safety is the court’s paramount consideration when making this decision. ICO’s can be for a maximum of 2 years for single offences and up to 3 years where there are multiple offences.
Supervision is a mandatory condition of an ICO. Further the Courts must impose at least one additional condition. Conditions that can be included in an ICO are: home detention, electronic monitoring, curfews, community service work (up to 750 hours), alcohol/drug bans, place restrictions, or non-association requirements. Offenders may also be required to participate in programs that target the causes of their behaviour.
The ICO is the most serious sentence that an offender can serve in the community. ICOs are not be available for offenders who have been convicted of murder, manslaughter, sexual assault, any sexual offence against a child, offences involving discharge of a firearm, terrorism offences, breaches of serious crime prevention orders, or breaches of public safety orders.
A person convicted of a domestic violence offence can only be sentenced to an ICO if the court is satisfied that the victim or likely co-residents can be adequately protected. For example, a domestic violence offender is not eligible for an ICO with a home detention condition if they are intending to reside with the victim.
Full Time imprisonment
Full Time imprisonment is the most serious penalty a court can impose. The sentence involves a period of time that will be spent inside an NSW correctional centre. When imposing a full time custodial sentence in most circumstances the court will apply a Non-Parole period, this is the minimum time that must be spent in a correctional centre. After the expiration of the Non-Parole period you will be eligible for release with the remainder of the sentence to be spent in the community on parole.
Book a Free Consultation for a Sexual Touching offence
Sexual Touching is a serious offence, one were there is a real possibility that a first time offender could receive a term of imprisonment. When charged it is important to get the advice of a skilled criminal defence lawyer. Lawyers at First Offence Legal have experience in dealing with all types of criminal matters. We are expert negotiators and work to ensure that our clients receive the best results.
If you or anyone you know has been charged with an indecent assault, you should contact First Offence Legal and book a free no obligation consultation. Remember when you are charged with a criminal offence you should always make First Offence Legal your First Defence!