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Sexual Touching

Sexual touching is an offence under section 61KC of the Crimes Act 1900 (NSW). The maximum penalty is imprisonment for five years.

This offence was introduced in 2018 and largely replaced the older offence of Indecent Assault. There are some significant differences, one being that the new offence of sexual touching no longer requires proof of indecency.

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The offence may be dealt with in the Local Court unless the prosecutor elects to have the matter dealt with in the District Court. If the matter is dealt with in the Local Court the maximum penalty which can be imposed is imprisonment for two years.

What the prosecution must prove

To prove an offence of sexual touching, the prosecution must show beyond reasonable doubt that:

  • A person sexually touches another person (the alleged victim) or incites someone else to;
  • The alleged victim does not consent; and,
  • The person knows the alleged victim does not consent.

What is “sexual touching”?

Sexual touching means touching another person with any part of the body, or with anything else, in circumstances where a reasonable person would consider the touching to be sexual. Section 61HB.

This also includes touching through something else, such as clothing worn by a person.

In deciding whether a reasonable person would consider the touching to be sexual, a court can consider:

  1. The area of the body;
  2. Whether the person doing the touching does so for sexual gratification or arousal (although this is not essential);
  3. Any other aspect of the touching or circumstances that might make it sexual.

Consent and knowledge

The new definition of consent in Section 61HE of the Crimes Act 1900 applies to this offence.

A person consents to sexual activity if they freely and voluntarily agree to the sexual activity.

Other than proving simply that a person did not agree, some other grounds on which it can be established that a person does not consent include:

  1. Consent whilst substantially intoxicated by drugs or alcohol; or,
  2. Consent because of intimidation, coercion, or threats of force; or,
  3. Consent because of the abuse of a position of authority or trust.

A person cannot consent if:

  1. They do not have capacity to consent because of their age or cognitive incapacity;
  2. They are asleep or unconscious;
  3. They have consented because of threats or they are unlawfully detained.

A person has “knowledge” about lack of consent to the sexual touching if:

  1. The person knows the alleged victim does not consent; or,
  2. The person is reckless as to whether the alleged victim consents; or,
  3. the person has no reasonable grounds for believing the alleged victim consents.

Importantly, a court will take into account all of the circumstances, including any steps taken to ascertain whether the alleged victim consented. However, self-induced intoxication cannot be taken into account.

Will I go to jail?

This is a serious offence. The maximum penalty that may be imposed is imprisonment for five years. If the matter is prosecuted in the Local Court the maximum penalty that the magistrate may impose is imprisonment for two years.

The sentencing magistrate or judge will consider the objective seriousness of the offence, whether you pleaded guilty to the offence, whether you have prior convictions, your subjective circumstances such as employment and health and whether remorse has been shown.

In an appropriate case the magistrate or judge may consider an alternative to a custodial sentence such as a Community Release Order, Community Corrections Order or an ICO.  For the full range of penalties that can be imposed, see our Sentencing Options page.