Sexual Touching

The offence of Sexual Touching replaced the offence of Indecent Assault in New South Wales on 1 December 2018. The new offence was introduced as part of a package of reforms designed to modernise and bring greater coherency to sexual offences, particularly those committed against children and persons in a special care relationship.

The offence of Sexual Touching is punishable by a maximum of 5 years’ imprisonment and a maximum of 7 years’ imprisonment where it is an aggravated offence. These are the same penalties that were applicable for Indecent Assault and Aggravated Indecent Assault (where the victim was of or above the age of 16 years) respectively.

New offences have also been introduced where the complainant is under the age of 16 years or is between 16 and 18 years and under the special care of the accused. You will find information about these charges at the bottom of this page.

The Offence of Sexual Touching

Any person (the alleged offender) who without the consent of another person (the alleged victim) and knowing that the alleged victim does not consent, intentionally:

• sexually touches the alleged victim, or
• incites the alleged victim to sexually touch the alleged offender, or
• incites a third person to sexually touch the alleged victim, or
• incites the alleged victim to sexually touch a third person,

is guilty of an offence.

A person who commits the offence of Sexual Touching is liable 5 years’ imprisonment.

Where a person commits the offence in circumstances of aggravation he or she is liable to 7 years’ imprisonment.

“Circumstances of aggravation” means circumstances in which:

• the alleged offender is in the company of another person or persons, or
• the alleged victim is (whether generally or at the time of the commission of the offence) under the authority of the alleged offender, or
• the alleged victim has a serious physical disability, or
• the alleged victim has a cognitive impairment.

What Actions Might Constitute Sexual Touching?

“Sexual touching” is defined as a person touching another person:

• with any part of the body or with anything else, or
• through anything, including anything worn by the person doing the touching or by the person being touched, in circumstances where a reasonable person would consider the touching to be sexual.

The matters to be taken into account in deciding whether a reasonable person would consider touching to be sexual include:

• 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
• whether the person doing the touching does so for the purpose of obtaining sexual arousal or sexual gratification, or
• whether any other aspect of the touching (including the circumstances in which it is done) makes it sexual.

Examples of Sexual Touching include:

• Intentionally touching a woman’s breast through her clothing without her consent.
• Kissing a person when it is clear the kiss is unwanted.
• Intentionally rubbing your groin against another person; for example, while standing on a crowded train.

What the Police Must Prove

To be found guilty of Sexual Touching the prosecution needs to prove beyond a reasonable doubt that you:

Intentionally, did one of the following:

• sexually touched the alleged victim, or
• incited the alleged victim to sexually touch the you, or
• incited a third person to sexually touch the alleged victim, or
• incited the alleged victim to sexually touch a third person.

and it was done:

• without consent of the alleged victim;
• knowing the alleged victim did not consent; and
• if the offence is an aggravated offence, that there was a circumstance of aggravation.

If the prosecution does not prove each of the elements above beyond reasonable doubt you will be found not guilty.

Possible defences

A person charged with sexual touching may validly defend the charge by arguing:

• The Sexual Touching was consensual;
• They had a reasonable belief that the sexual touching was consensual;
• The Sexual Touching was done for genuine medical or hygienic purposes

Which Court Will Hear the Matter?

This charge is a Table 2 offence which means that the DPP can elect to have the matter dealt with in the District Court. However, if no election is made, it will remain in the Local Court.

Sexual Touching of a Child Under the Age of 10 Years or Between 10 And 16 Years

Special offences exist where an alleged victim is under the age of 10 years or between the ages of 10 and 16 years. for these offences, whether the alleged victim consented and the alleged offender knew the alleged victim consented are irrelevant.

Sexual touching of a child under the age of 10 years is punishable by 16 years’ imprisonment.

Sexual touching of a child between the ages of 10 and 16 years is punishable by 10 years’ imprisonment.

These charges are Table 1 offences which means that either an accused or the Director of Public Prosecutions can elect to have the matter dealt with in the District Court. However if no election is made, it will remain in the Local Court.

Sexual Touching of a Young Person Between 16 and 18 Under Special Care

There is a special offence where an alleged victim is between 16 and 18 years of age and under the special care of the alleged offender.

An alleged victim is under the “special care” of an alleged offender if, and only if:

• the alleged offender is the parent, grandparent, step-parent, guardian or authorised carer of the alleged victim or the de facto partner of a parent, guardian or authorised carer of the alleged victim, or
• the alleged offender is a member of the teaching staff of the school at which the alleged victim is a student, or
• the alleged offender has an established personal relationship with the alleged victim in connection with the provision of religious, sporting, musical or other instruction to the alleged victim, or
• the alleged offender is a custodial officer of an institution of which the alleged victim is an inmate, or
• the alleged offender is a health professional and the alleged victim is a patient of the health professional.

For this offence, whether the alleged victim consented and the alleged offender knew the alleged victim consented are irrelevant.

A person does not commit this offence if the person and the alleged victim were married to each other at the time of the offence.

Where the alleged victim is of or above the age of 16 years and under the age of 17 years the offence is punishable by 4 years’ imprisonment.

Where the alleged victim is of or above the age of 17 years and under the age of 18 years the offence is punishable by 2 years’ imprisonment.

This charge is a Table 2 offence which means that the DPP can elect to have the matter dealt with in the District Court. However if no election is made, it will remain in the Local Court.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.