Introduction

In New South Wales (NSW), the offence of sexual touching is a relatively new offence in criminal law, having replaced the offence of ‘indecent assault’ on 1 December 2018. This legislative change was part of broader reforms to sexual offences under the Crimes Act 1900 (NSW). The offence of sexual touching is considered a serious criminal offence in NSW.

This guide aims to clarify the key aspects of the offence of sexual touching in NSW. It will explain what constitutes sexual touching by detailing how a reasonable person would consider the touching to be sexual. Understanding consent to sexual activity is essential when dealing with allegations of sexual touching.

Understanding the Offence of Sexual Touching in NSW

Replacing Indecent Assault

The offence of sexual touching is a relatively new offence in New South Wales (NSW), having replaced the offence of indecent assault on 1 December 2018. This change was part of a broader reform to modernise and improve the coherence of sexual offence laws, particularly those relating to offences against children and individuals in special care relationships. Importantly, a child is considered under special care if the alleged offender is a parent, grandparent, step-parent, guardian or authorised carer, or their de facto partner. There are many other examples, but all imply a close and supervisory relationship. The Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 brought about this reform, repealing the former offences of indecent assault and aggravated indecent assault under sections 61L and 61M of the Crimes Act 1900. The penalties for the new offence of sexual touching are the same as those that previously applied to indecent assault and aggravated indecent assault where the alleged victim was 16 years or older.

Defining Sexual Touching

“Sexual touching” under NSW law is defined as touching another person in circumstances where a reasonable person would consider the touching to be sexual. This definition is outlined in section 61HB of the Crimes Act 1900 (NSW). The touching can be done with any part of the body or through anything, including clothing worn by either the person touching or the person being touched.

When deciding whether a reasonable person would consider the touching to be sexual, several factors considered include:

• Whether the area of the body touched or doing the touching is the genital area, anal area, or breasts (in the case of a female person, or transgender or intersex person identifying as female), regardless of breast development.
• Whether the person doing the touching does so for the purpose of obtaining sexual arousal or sexual gratification.
• Whether any other aspect of the touching, including the circumstances in which it occurs, makes it sexual.

However, touching for genuine medical or hygienic purposes is not considered sexual touching. To illustrate, intentionally touching a woman’s breast over her clothing without consent, kissing someone when it is clearly unwanted, or intentionally rubbing one’s groin against another person in a crowded place can all be examples of sexual touching.

Elements of a Sexual Touching Offence

Intentional Sexual Touching

To secure a conviction for a sexual touching offence in NSW, the prosecution must prove certain elements beyond a reasonable doubt. One key element is that the touching must be intentional and sexual in nature. This means the person charged with sexual touching must have intentionally sexually touched another person.

The law specifies that “sexual touching” occurs when a person touches another person in circumstances where a reasonable person would consider the touching to be sexual. Several factors are considered when deciding whether a reasonable person would deem the touching sexual. These factors include:

• Whether the area of the body touched or doing the touching is the genital area, anal area, or breasts of a female person or transgender or intersex person identifying as female.
• Whether the person doing the touching does so for the purpose of sexual arousal or sexual gratification.
• Whether any other aspect of the touching, including the circumstances in which it is done, makes it sexual.

For example, intentionally touching a woman’s breasts over her clothing without consent would likely be considered sexual touching. The prosecution must demonstrate that the alleged offender intentionally carried out the touching and that, based on the circumstances and nature of the touching, a reasonable person would consider it sexual.

Lack of Consent and Knowledge

In addition to proving intentional sexual touching, the prosecution must also prove that the touching occurred without the consent of the alleged victim. Furthermore, it must be proven that the person charged with sexual touching knew that the alleged victim was not consenting. These two elements are crucial for establishing a sexual touching offence under the Crimes Act 1900 (NSW).

Consent, in the context of sexual activity, means that a person freely and voluntarily agrees to the sexual activity. If consent is not given to the sexual touching, and the person doing the touching is aware of this lack of consent, then this element of the offence is satisfied. The prosecution needs to demonstrate beyond a reasonable doubt that the alleged victim did not consent to the sexual touching and that the alleged offender was aware of this absence of consent.

Aggravated Sexual Touching

Circumstances of Aggravation

Aggravated sexual touching is considered a more serious offence than sexual touching in New South Wales (NSW). The offence of aggravated sexual touching occurs when the sexual touching takes place alongside certain aggravating circumstances. These circumstances elevate the seriousness of the sexual touching offence and can include situations where:

• The alleged offender commits the offence of sexual touching in the company of another person or persons.
• The alleged victim is under the authority of the alleged offender, whether generally or at the time of the commission of the offence.
• The alleged victim has a serious physical disability.
• The alleged victim has a cognitive impairment.

These factors are considered circumstances of aggravation because they may indicate a greater level of vulnerability of the alleged victim or a more concerning nature of the commission of the offence.

Increased Penalties for Aggravated Offence

Aggravated sexual touching attracts a higher maximum penalty compared to the standard sexual touching offence in NSW. Where a person commits the offence of sexual touching in circumstances of aggravation, they are liable to a maximum penalty of 7 years imprisonment. This is an increase from the maximum penalty of 5 years imprisonment for a standard sexual touching offence. The higher maximum penalty for aggravated sexual touching reflects the increased seriousness of the offence due to the presence of aggravating factors.

Penalties for Sexual Touching in NSW

Maximum Imprisonment Terms

In NSW, the maximum penalty for a sexual touching offence is determined by several factors, including whether the offence is standard or aggravated, and the age of the alleged victim. For a standard sexual touching offence, the maximum term of imprisonment is 5 years. However, if the case is heard in the Local Court, the imprisonment term is capped at 2 years.

Aggravated sexual touching offences carry a higher maximum penalty due to the presence of aggravating circumstances. In cases of aggravated sexual touching, the maximum imprisonment term increases to 7 years.

Offences involving children attract even more severe penalties. Sexual touching of a child under the age of 10 years is the most serious, carrying a maximum penalty of 16 years imprisonment. For sexual touching of a child between the ages of 10 and 16 years, the maximum imprisonment term is 10 years.

Alternative Penalties

While sexual touching offences can result in imprisonment, the courts in NSW have discretion to impose alternative penalties. It is important to remember that maximum penalties are rarely applied, and a range of other sentencing options are available. These alternative penalties can include:

• Section 10 Dismissal: A court may dismiss the charges without proceeding to a conviction, provided it is deemed appropriate.
• Conditional Release Order (CRO): This order involves releasing the offender on conditions, which can include good behaviour or participation in rehabilitation programs.
• Fine: The court may impose a financial penalty.
• Community Correction Order (CCO): This order requires the offender to comply with certain community-based conditions, such as community service work.
• Intensive Correction Order (ICO): This is a custodial sentence served in the community under strict supervision, although it is not available if the sexual touching offence involved a person under the age of 16 years.

Defences to Sexual Touching Charges

Consent as a Defence

Consent is a significant defence against a charge of sexual touching in NSW. If the sexual touching was consensual, it is not considered an offence. Under the Crimes Act 1900 (NSW), consent means that a person freely and voluntarily agrees to sexual activity. For consent to be valid, it must be clearly and freely communicated, such as through verbal agreement or affirmative actions.

To successfully use consent as a defence, it must be proven that the alleged victim freely and voluntarily agreed to the sexual touching. If consent was given to the sexual touching, then this can negate the charge. However, there are situations where consent is not considered valid, such as when a person:

• Does not have the capacity to consent, including due to age (under 16) or cognitive impairment.
• Is unconscious or asleep.
• Consents due to threats or terror.
• Consents because they are being restrained.

It is also a defence if the accused person had a reasonable belief that the sexual touching was consensual. However, this belief must be genuinely held and reasonable in the circumstances. A person cannot simply ignore the situation and then claim they did not know the other person was not consenting. The prosecution does not need to prove that the alleged victim explicitly said “no”; they must demonstrate that the accused did not have reasonable grounds to believe there was consent.

Other Potential Defences

Besides consent, other defences may be available for sexual touching charges in NSW. One such defence is duress, which applies if the accused was coerced or threatened into sexually touching someone against their will. If a person is forced to commit the offence due to threats, this may be a valid defence.

Another defence is if the touching was done for genuine medical or hygienic purposes. Sexual touching is not considered an offence if it is carried out for legitimate medical or hygienic reasons. For instance, touching that occurs during a necessary medical examination would not be classified as sexual touching.

Conclusion

In New South Wales (NSW), sexual touching is a criminal offence under the Crimes Act 1900, and it is considered a serious matter within the criminal justice system. This offence replaced indecent assault in December 2018 as part of reforms to sexual offences law. Sexual touching is defined as touching another person in circumstances where a reasonable person would consider the touching to be sexual, and it requires intentional conduct without consent. Aggravated sexual touching and offences against children carry even more severe penalties, reflecting the seriousness with which these crimes are treated in NSW.

Understanding the nuances of the offence of sexual touching, including consent, potential defences, and penalties, is crucial for anyone in NSW. If you or someone you know is facing sexual touching charges, it is essential to seek guidance from experienced criminal lawyers. Contact Daoud Legal today to book a consultation and ensure you receive expert advice and strong representation in navigating these complex legal matters.

Frequently Asked Questions