The Criminal Offence of Sexual Touching Without Consent

What Is ‘Sexual Touching’?

In both New South Wales and Victoria, touching another person may be ‘sexual’ due to:

• The area of the body that is touched or used in the touching, including if it involves the genital or anal region, the buttocks or, in the case of a female or a person who identifies as a female, the breasts; or
• The fact that the person doing the touching seeks or gets sexual arousal or sexual gratification from the touching; or
• Any other aspects of the touching which make them sexual.

In both States, touching carried out solely for proper medical or hygienic purposes is not
“sexual” touching.

Consent to Sexual Touching

What constitutes  sufficient consent to sexual activity are strikingly similar in both Victoria and NSW  In Victoria consent is defined as “free agreement”, whilst in NSW it means  that a person “freely and voluntarily agrees to sexual activity”.

In both States, there is no consent where the alleged victim:

• Does not say or do anything to communicate consent.
• Lacks capacity to consent.
• Is so affected by alcohol or another drug to be incapable of consenting.
• Is unconscious or asleep.

Consent is also absent where a person participates in sexual activity due to:

• Force, fear of force or fear of serious harm.
• Coercion, blackmail or intimidation.
• Fraudulent inducement.
• They are unlawfully detained.
• They are mistaken about the nature or purpose of the sexual activity.
• They are mistaken about the identity of the person of they are married to the person.

Knowledge of Non-Consent

Although worded differently, the required mental state for the offence of sexual touching in NSW and Victoria have similar elements.

In Victoria, an accused will be said to have ‘not reasonably believed’ the other person was consenting to the sexual touching if:

• They knew the other person did not consent;
• They did now know whether the person was consenting, including giving no thought at to whether they were consenting; or
• They believed the person was consenting, but that belief was not reasonable in the circumstances.

Similarly, in NSW an accused will be said to ‘know’ the other person was not consenting to the sexual touching if:

• They knew the other person did not consent;
• They were reckless as to whether the other person does not consent, including if they realised at the time that consent may possibly be absent but went ahead with the sexual activity regardless; or
• They believed the person was consenting, but that belief was not reasonable in the circumstances.

In both States, in determining whether a person’s belief in  another’s consent was reasonable, consideration may be given to ‘any steps’ (Victoria) or anything ‘they said or did’ (NSW) to ascertain consent.

Finally, self-induced intoxication cannot be taken into account when determining whether a person’s belief in consent was reasonable.