The Law, Penalties and Defence for Sexual Touching in New South Wales

It has been reported that at around 7.30pm on Friday, 27 December 2019 a 41-year old man from Hurstville Grove in Sydney’s south stopped an 18-year old door-to-door salesperson as she was walking on a street, lured her into his home and sexually touched her on a number of occasions in what has been described as a ‘bizarre’ sequence of events during which he also spoon-fed her yoghurt.

The woman is reported to have left the man’s home and the next day reported him to St George Local Area Command.

Police officers attended the man’s home at around 3.45pm that afternoon, arrested him, charged him with sexual touching and refused him police bail.

The details of the alleged incident are otherwise sketchy, except to say the man was remanded in custody and scheduled to appear in Parramatta Local Court.

New laws introduced December 2018

In December 2018, a number of sexual offences in New South Wales were strengthened in the wake of the Royal Commission into institutional child abuse, and a new offence of sexual touching under section 61KC Crimes Act 1900 (NSW) replaced ‘indecent assault’.

What are the maximum penalties for sexual touching?

Sexual touching carries a maximum penalty of up to 5-years imprisonment in the District Court, or up to 2 years if the case remains in the Local Court.

However, if the complainant was between the ages of 10 and 16 years, the penalty is up to 10-years imprisonment, and if the child was under 10, the maximum penalty increases to 16 years in prison.

An intensive correction order (ICO) cannot be made where the complainant was under the age of 16.

What does sexual touching mean?

“Sexual touching” is where a person touches another:

(a) with any part of the body or with anything else, or

(b) through anything, including anything worn by the person doing the touching or by the person being touched,

where a reasonable person would consider the touching to be sexual.

Matters that are taken into account when deciding whether a reasonable person would consider touching to be sexual include:

(a) whether the area of the body touched or doing the touching is the person’s genital area or anal area or (in the case of a female person, or transgender or intersex person identifying as female) the person’s breasts, whether or not the breasts are sexually developed, or

(b) whether the person doing the touching does so for the purpose of obtaining sexual arousal or sexual gratification, or

(c) whether any other aspect of the touching (including the circumstances in which it is done) makes it sexual.

The law makes provision for genuine medical touching, or touching for hygienic purposes and these are not considered against the law.

Defending a charge of sexual touching

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

• The accused person intentionally touched the complainant or incited someone else to do this; and
• A hypothetical reasonable person will consider the touching was ‘sexual’; and
• The complainant did not consent to the touching; and
• You knew that the complainant was not consenting to the touching at the time.

Defences of duress, self-defence and necessity may also apply.

An accused person will be considered by the court to have known that the complainant was not consenting to the touching in any one of the following scenarios (if it is proven beyond reasonable doubt by the prosecution):

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

Therefore, defending the charges can encompass one or more of the following arguments.

• The touching was accidental
• The touching was involuntary – as the result of an unintentional reflexive action, or medical condition.
• The accused person honestly believed the alleged complainant was consenting at the time, and can provide reasonable grounds for this belief.
• The touching was for medical or hygienic purposes.
• The accused person was acting under duress.

Accused of sexual touching?

If you are suspected or accused of sexual touching, call Sydney Criminal Lawyers today on (02) 9261 8881 to arrange a conference with an experienced criminal defence lawyer with a proven track record of convincing police not to press charges in the first place, and having cases withdrawn or thrown out of court in the event that charges are brought.