The Offence of Sexually Touching a Child Aged 10 to 16

A 42-year old police sergeant has been charged with three counts of sexually touching a child aged 10 to 16, as well as two counts of indecent assault.

The officer, who is attached to the North West Metropolitan Command, was charge after an investigation by Professional Standards Command – the internal police unit which investigates allegations of police misconduct.

The officer has been suspended with full pay and has been granted conditional bail while he awaits his next court appearance, which is in June.

It is the latest in a string of child sexual abuse charges brought against New South Wales police officers in recent times.

The offence of sexual touching replaces indecent assault

The offence of sexual touching was introduced into the NSW Crimes Act in December 2018 as part of a package of reforms recommended by the Royal Commission into Institutuional Responses to Child Abuse.

The new offence, which replaced the offence of indecent assault, is meant to better describe the type of conduct that is against the law when it comes to having non-consensual physical contact of a sexual nature with another person.

The offence of sexually touching a child aged 10 to 16 years

Sexual touching of a child aged at least 10 but less than 16 years of age is an offence under section 66DB of the Crimes Act 1900, which carries a maximum penalty of 10 years in prison.

To establish the offence, the prosecution must prove beyond a reasonable doubt that the defendant:

1. Sexually touched a child aged at least 10 but less than 16 years, or
2. Incited the child to sexually touch themselves, or
3. Incited a third person to sexually touch the child, or
4. Incited the child to sexually touch a third person.

‘Sexual Touching’ is touching another person with any part of the body, or through anything, including clothing, where a reasonable person would consider it to be sexual.

Matters that are relevant when determining if touching is sexual include whether:

1. There is touching of the genitals, or the breasts of a person who identifies as female,
2. The act was for sexual arousal or gratification, and
3. Any other aspect of the touching, or the surrounding circumstances, make it sexual.

Defences to the charge

In addition to having to prove each element (or ingredient) of the offence, the prosecution must disprove beyond reasonable doubt any legal defence that is raised on the evidence.

Defences to the charge include duress and lawful correction of a minor.

Touching is not considered to be sexual if it is carried out for a genuine medical or hygienic purpose.