In 2018, “sexual touching” replaced the offence of “indecent assault” as part of major reforms to sexual offences under NSW criminal law.
A person can only be charged with indecent assault if the incident took place before 1 December 2018.
What is sexual touching?
Sexual touching covers a wider range of non-penetrative sexual activities and situations. Sexual touching is a crime under section 61KC of the Crimes Act 1900 (NSW). It occurs when a person:
- Intentionally “sexually touches” another person (the alleged victim),
- The alleged victim does not consent, and
- The person knows the alleged victim does not consent.
Examples of the offence include touching a person’s buttocks or kissing them in circumstances where they have not agreed.
Definition of “sexually touches”
Under section 61HB of the Crimes Act, “sexual touching” means a person touching another person in circumstances where a reasonable person would consider the touching to be sexual. This can include when the person touches the alleged victim with:
- Any part of their body,
- An object, or
- Through any material or object, including any clothing.
In deciding whether a reasonable person would consider the touching to be sexual, the courts will consider whether:
- The touching involves the person’s genital area, anal area or breasts,
- The touching was for sexual arousal or gratification, or
- Any other aspect of the touching makes it sexual.
Definition of “consent”
A person consents to a sexual activity if they freely and voluntarily agree. The Crimes Act lists a number of situations where an individual does not consent. These include where the person:
- Does not have the capacity to consent (this includes if they are under the age of 16 or have a cognitive incapacity).
- Is unconscious or asleep.
- Consents because of threats of force or terror.
- Consents to the sexual activity because they have been restrained.
Knowledge of consent
The prosecution also needs to prove that the accused knew their victims did not consent. This is defined broadly, and knowledge of consent includes where the accused:
- Knew that the person did not consent,
- Was reckless as to whether the person consented, or
- Had no reasonable grounds for believing that the other person consented.
Being reckless includes being aware that the other person might not be consenting, but performing the sexual act anyway. A person cannot ignore the situation and then claim they didn’t know that the other person didn’t want to participate.
The prosecution does not have to prove that the victim explicitly said “no”. Rather, they must show that the accused didn’t have “reasonable grounds” to think that the other person was consenting.
What is aggravated sexual touching?
Aggravated sexual touching is a crime under section 61KD of the Crimes Act. It contains the same elements as sexual touching, except that the offence takes place in circumstances of aggravation. These include if:
- The alleged offender is in the company of another person.
- The alleged victim is under the authority of the offender.
- The alleged victim has a serious physical disability.
- The alleged victim has a cognitive impairment.
What is sexual touching of a child?
The sexual touching of a child is criminalised separately under sections 66DA (a child under the age of 10) and 66DB (a child between the ages of 10 and 16) of the Crimes Act. The offence is similar to sexual touching, except that it occurs in circumstances where a person intentionally:
- Sexually touches a child.
- Incites a child to sexually touch the person.
- Incites a child to sexually touch another person.
- Incites another person to sexually touch a child.
The maximum penalty for sexual touching is five years imprisonment.
If the offence remains in the Local Court, then the maximum penalty is two years imprisonment.
Alternatives penalties can include a conditional release order with conviction, community correction order, or intensive correction order. Learn more about the types of penalties available.
The maximum penalties for specific sexual touching offences are set out below. Offenders frequently receive prison sentences.
|Offence||Maximum term of imprisonment|
|Sexual touching||5 years|
|Aggravated sexual touching||7 years|
|Sexual touching - child under 10 years old||16 years|
|Sexual touching - child between 10 and 16 years old||10 years|
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