Touch/touching without consent

The offence of sexual touching is covered under section 61KC Crimes Act 1900.

According to this section, a person is deemed to have committed sexual touching if, without the consent of the complainant and with the awareness that consent is lacking, they intentionally:

1. Sexually touching the complainant;
2. Inciting the complainant to sexually touch him or her;
3. Inciting a third person to sexually touch the complainant; or
4. Inciting the complainant to sexually touch a third person.

The definition of ‘sexual touching’ is provided by Section 61HB of the Act, which states that sexual touching involves any form of physical contact with another person or through anything (including anything worn by either person), where a reasonable person would perceive the touching to be sexual.

When deciding if touching is sexual, the following factors are taken into account:

– The specific body areas involved in the touching (such as the genital area and areas of secondary sexual characteristics of females, for instance their breasts).
– Whether the defendant’s actions were motivated by sexual arousal or sexual gratification.
– Any other aspects of the touching or the surrounding circumstances that indicate a sexual nature.

It is important to note that touching will not be considered sexual if it was done for genuine medical purposes.

Where are these cases dealt with?

The maximum penalties for sexual touching depend on whether the case is heard in the District Court or remains in the Local Court. If dealt with in the District Court, the maximum penalty is 5 years in prison, while in the Local Court, it is 2 years. If this charge is accompanying more serious charges it is often heard on ‘indictment’ in the District Court. When it is prosecuted without substantially more serious charges it is generally proceeded with by summary process in the Local Court.

Who prosecutes these cases?

The prosecution and the defence can elect to take a matter to the District Court; this is rarely done by the Defence, given the higher maximum penalty available. It is more often not elected by the prosecution either. It can be prosecuted in either court by the NSW Police through their prosecution division (officers and lawyers working directly for the police), or by the prosecuting solicitors employed by the Office of the Director of Public Prosecutions.

If the offence involves a child who was at least 10 years old but under 16, the maximum penalty increases to 10 years. If the child is under 10 years old, the maximum penalty is 16 years.
Despite these maximum penalties, the court has the discretion to impose various other penalties for sexual touching, which can include fines, imprisonment and good behaviour bonds.

In order to establish the guilt of a person charged with sexual touching, the prosecution needs to demonstrate the following elements:

1. The defendant engaged in physical contact with the complainant or incited someone else to do so.
2. The nature of the touching was sexual in character.
3. Consent was not given by the complainant for the touching.
4. The defendant either knew that consent was not provided or acted recklessly without regard to whether consent was given.

If the prosecution fails to prove any of these elements beyond reasonable doubt, the case should result in an acquittal.

In order for a conviction of sexual touching to occur, the prosecution bears the burden of proving beyond reasonable doubt that:

1. You engaged in touching the complainant,
2. The touching was of a sexual nature,
3. You lacked the consent of the other person touched to carry out the touching, and
4. You were aware that consent of the person was absent, or acted recklessly concerning its absence.

There are several potential defences against sexual touching charges, including the following arguments:

1. Lack of proof of actual touching (although this proof is usually simply the account provided in oral evidence by the complainant).
2. Lack of evidence linking you to the touching or incitement (such as issues of identity, or alibi; and often found in historical sexual allegations).
3. Lack of intent or recklessness on your part (this is a defendant stating that the touching was essentially accidental or incidental to some legitimate action – one can think of many instances possible here in more congested environments, such as public transport or major events).
4. Absence of evidence demonstrating the sexual nature of the touching (this comes down to what sort of touch was made and to what body part of the other person; and, if anything was said to colour the nature of the touch by indicating the toucher’s intention). More often the body part touched indicates the sexual nature of the touch. But not always. The old common law in Australia was informed in the last century by a case of a man sliding his hand along a woman’s leg being found to be rendered sexual (or at the time, indecent) in nature touch due to the suggestive words of the man’s sexual proposition to her as he made the physical action.
5. The touching was for legitimate medical or hygienic reasons. This will mostly be found in cases against service providers and healthcare professionals accused.

If any of these defences fail to be disproven, then you must be found not guilty of the offence.
A skilled lawyer can present written submissions to the prosecution, seeking to have the case against you dropped, or vigorously contest the charges at a defended hearing or trial.

If the prosecution has compelling evidence against you, you may opt to plead guilty to the offence.
In such a scenario, your lawyer could negotiate with the police on the ‘facts’ to potentially lessen the gravity of the offence.

Your lawyer can also advise you on gathering materials that can be presented to the court during your sentencing, including a letter of apology, character references, and any documents from counselors or healthcare professionals you may have consulted.

These materials, combined with persuasive oral submissions by your lawyer in court, may aid in securing the most lenient possible penalty given the circumstances.

By entering an early guilty plea, you may be eligible for a sentence ‘discount’ of up to 25%, resulting in a less severe penalty, such as a section 10 dismissal or a conditional release order, instead of a more serious punishment.

Additionally, you will avoid the time, expenses, and stress associated with a defended hearing or trial.

No, you are not guilty if the touching was accidental. The prosecution bears the burden of proving beyond reasonable doubt that the touching was intentional or reckless.

If the other person consented at the time of the touching, you cannot be found guilty of sexual touching. The prosecution must prove beyond reasonable doubt that the other person did not consent at the time of the act, and you knew they did not consent or were reckless about their consent.
It’s important to note that certain individuals are incapable of giving consent, including those under the age of 16 and those aged 16 to 18 in a relationship of “special care,” such as between a parent and child, teacher and student, or health professional and patient. Additionally, a person with a cognitive impairment cannot give consent to someone responsible for their care. Consent cannot be claimed retrospectively after the act has concluded.

Sexual touching has replaced indecent assault as an offence in NSW.