NSW Police Officer Remains on Force Despite Being Guilty of Sexual Touching

Sexual harassment remains rife within the New South Wales Police Force, despite the organisation’s stated commitment in 2019 to improve its culture.

All talk but little action

Despite its public statements, the New South Wales Police Force has allowed one of its officers to keep his job despite being found guilty of sexually touching a female colleague without her consent and sentenced to an 18-month conditional release order. An apprehended violence order was also made against the officer.

Sergeant Ronald John Tarlington remains has been suspended on full pay despite a Magistrate in Downing Centre Local Court finding him guilty and imposing the orders on him.

The case

The court heard that a female colleague was sitting on Sergeant Tarlington’s lap at a pub one evening late last year, when the senior officer moved his right hand inside her jacket and grabbed her breast, causing her to stand up and walk away.

The woman told the court that her superior squeezed her nipple, growled and had a crooked smile on his face. She reported the incident to several colleagues immediately afterwards, and the entire incident was captured on CCTV footage.

In finding him guilty, Magistrate Paul Mulroney found there was no evidence consistent with the touch being a mistake, as the sergeant had claimed.

His Honour remarked that people should be able to socialise without having their bodily integrity compromised, and that the sergeant’s conduct was a breach of trust.

Mr Tarlington is now appealing his sentence to the District Court of New South Wales.

Harassment is rife in the NSW police force

Harassment and bullying are rife amongst the Australian police forces, with figures released in 2018 showing that in the New South Wales force alone, officers lodge around 200 harassment complaints against their own colleagues each year, about a quarter of which are for sexual harassment.

In 2019, a cultural review of the NSW police force, conducted by former Australian sex discrimination commissioner, Elizabeth Broderick, found that one in three women reported being sexually harassed by a colleague in the last five years while only 13% men said the same.

‘Boys club’

Female officers reported a ‘masculine culture’ with high levels of sexual discrimination, which made it difficult for them to do their jobs or move through the ranks to leadership positions.

At the time, the New South Wales police union called on the force for urgent action to end the ‘boys’ club’ and provide more of a level playing field for women.

Victorian police, South Australian Police and the AFP have also been the subject of various reviews in the past several years, each of which have highlighted high levels of harassment.

For victims, speaking up can mean further harassment as well as ostracism and intimidation. Police forces around the country have a reputation for isolating and tormenting whistleblowers, and protecting their own.

Often this means officers who witness poor behaviour won’t stand up for their colleagues either for fear of reprisal, and victims can sometimes find it easier to leave the force.

Part of the problem too, stems from the fact that offending officers are, more often than not, left undisciplined.

What does the law say?

Workplace harassment, discrimination and bullying laws are set out in both federal and state anti-discrimination laws, as well as the Fair Work Act 2009 (Cth).

But the relatively new offence of sexual touching – which replaced the offence of indecent assault in New South Wales on 1 December 2018 – says that making sexualised contact with another’s body without their consent a criminal offence.

The new offence was introduced as part of a range of reforms across the laws that govern sexual offences, aimed at promoting coherency and clarity.

The offence of Sexual Touching in NSW

Sexual touching is an offence under section 61KC of the Crimes Act 1900 in New South Wales, which carries a maximum penalty of 5 years in prison in the District Court, or 2 years if finalised in the Local Court.

The maximum penalty increases to 10 years in prison where the complainant was between the ages of 10 and 16 years, or 16 years where the complainant was under the age of 10.

Whilst there are various types of penalties available for a sexual touching, an intensive correction order (ICO) is not an available option for a Magistrate or Judge where the victim involved in the offence was less than the age of 16-years.

A person can only be guilty of sexual touching if the court is satisfied beyond reasonable doubt as to all of the following elements:

1. The defendant intentionally touched the complainant or incited someone else to do this;
2. A hypothetical reasonable person will consider the touching was ‘sexual’;
3. The complainant did not consent to the touching; and
4. The defendant knew that the victim was not consenting to the touching at the time.

The defendant will be considered to have known that the complainant was not consenting to sexual touching in any one of the following scenarios:

• The defendant had turned his/her mind to the possibility that the complainant did not consent, but took the risk anyway;
• The defendant didn’t care as to whether the complainant was consenting at the time;
• The defendant didn’t turn his/her mind to the issue of whether the complainant was providing consent at the time; or
• The defendant knew that the complainant wasn’t consenting.

These states of mind, or lack thereof, can be inferred by looking into the particular facts of the case at hand, including the defendant’s or complainant’s conduct before, during and after the alleged sexual touching.