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.

 

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.

 

Penalties

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.

 

OffenceMaximum term of imprisonment
Sexual touching5 years
Aggravated sexual touching7 years
Sexual touching - child under 10 years old16 years
Sexual touching - child between 10 and 16 years old10 years

 

How can we help?

We have over 55 years of experience in successfully defending sexual offence related charges.

Book a free consultation or call us on 1300 668 484 for 24/7 legal advice.

Frequently Asked Questions

Where will the matter be heard?

Sexual touching will be dealt with in the Local Court unless the prosecution elects to have the matter heard in the District Court. The prosecution might make an election if they think the seriousness of the crime couldn’t be appropriately dealt with by Local Court sentences.

Aggravated sexual touching, sexual touching of a child under 10 years old, and sexual touching of a child aged between 10 and 16, will be dealt with in the Local Court unless the prosecution or accused elects to have it heard in the District Court. In this case, the accused may also make an election if they think they would benefit from having their matter heard before a jury.

What is the difference between indecent assault and sexual touching?

The offence of “sexual touching” replaced the law on “indecent assault”, which was an offence under section 61L of the Crimes Act 1900 (NSW).  The main difference is in how the law defined “indecent” compared to how it now defines “sexual”.

In proving indecent assault, the prosecution had to show that the assault was “contrary to the ordinary standards of respectable people in this community,” and had a “sexual connotation or overtone”. Without this element, the offence of sexual touching will likely criminalise a broader range of behaviours.

What is the difference between sexual assault and sexual touching?

Sexual assault primarily deals with the non-consensual penetration of the vagina, anus or mouth. Sexual touching does not require penetration. It criminalises non-consensual touching where a reasonable person would consider it to be sexual.

Could a medical examination amount to sexual touching?

No. Under section 61HB, touching done for “genuine medical or hygienic purposes” is not sexual touching. However, if the touching was done for the purpose of sexual gratification, under the guise of a medical procedure, then the person could still be guilty of an offence.