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Sexual Touching

sexual offences

The offence of sexual touching is found in section 61KC of the Crimes Act 1900 (NSW) which deems a person guilty if they have, without consent of the complainant, and knowing that the complainant does not consent, intentionally sexually touches the complainant, or incites the complainant to sexually touch the accused person, or incites a third person to sexually touch the complainant, or incites the complainant to sexually touch a third person. 

You could be charged with sexual touching if:

  1. Kissing another person without consent;
  2. Intentionally touching another person on the breasts, vagina, anus or penis without consent;
  3. Rubbing yourself against another person without consent.
 

What must the prosecution prove?

Since this offence is dealt with in the criminal jurisdiction, the burden of proof for establishing this offence rests solely with the Prosecution.

The prosecution must prove the following beyond reasonable doubt:

  • That you touched or enticed another to sexually touch the complainant; and
  • That the sexual touching was without the consent of the complainant; and
  • That you knew that the complainant did not consent to the sexual touching.
 

The offence of sexual touching, delineated in section 61KC of the Crimes Act 1900 (NSW), encompasses various non-consensual actions, such as intentional sexual touching or inciting such behavior without the complainant’s consent. These actions may include unwanted kissing, touching intimate body parts, or engaging in inappropriate physical contact without the other party’s agreement.

What constitutes “sexual touching”?

The term “sexual touching” refers to any physical contact made with another person using any part of the body or an object, under circumstances where a reasonable individual would perceive the contact to have sexual connotations, as defined by Section 61HB.

This definition extends to instances where contact occurs indirectly, such as through clothing worn by the person.

When determining whether the touching qualifies as sexual, a court may take into account several factors:

  1. The specific body area involved in the contact.
  2. The intentions of the individual initiating the contact, though sexual gratification or arousal is not always a requirement.
  3. Any other elements of the contact or surrounding circumstances that could contribute to its sexual nature.

 

What is Consent and Knowledge?

Consent

What constitutes consent and knowledge is crucial in understanding sexual offences under Section 61KC of the Crimes Act 1900.

According to the new definition in Section 61HE of the Act, consent to sexual activity is when an individual freely and voluntarily agrees to engage in such activity. However, consent may be deemed absent under certain circumstances:

  1. Consent may not be valid if the individual is substantially intoxicated by drugs or alcohol.
  2. Consent obtained through intimidation, coercion, or threats of force is not considered valid.
  3. Consent obtained through the abuse of a position of authority or trust is also not valid.
 

Furthermore, there are situations where a person cannot legally consent:

  1. If they lack the capacity to consent due to their age or cognitive incapacity.
  2. If they are asleep or unconscious.
  3. If they have only consented due to threats or while unlawfully detained.

Knowledge

As for “knowledge” regarding lack of consent to sexual touching:

  1. The accused is deemed to have knowledge if they are aware that the alleged victim does not consent.
  2. They may also be considered to have knowledge if they are reckless as to whether the alleged victim consents.
  3. Alternatively, if the accused lacks reasonable grounds for believing the alleged victim consents, they are still deemed to have knowledge.

It’s important to note that courts consider all circumstances, including any efforts made to ascertain the alleged victim’s consent. However, self-induced intoxication cannot be used as a defense or considered in determining consent.

What are the maximum penalties for this offence?

The maximum penalty for sexual touching in NSW is:

  • 5 years imprisonment

What are your options at Law?

If you are facing charges of possession of a prohibited drug, the team at Barsha Defence Lawyers can exercise the following options on your behalf to protect your interests:

  1. Negotiate with prosecutors to withdraw or amend the charges.
  2. Plead not guilty to the charges and present a case at a Hearing/Trial to challenge the prosecution’s case.
  3. Plead guilty to the charges but dispute the facts alleged at a “disputed facts hearing”.
  4. Plead guilty to the charges and the facts at a Sentencing hearing with an objective to obtain the most lenient penalty available.

Will I go to Jail?

Given the seriousness of the offence of sexual touching, it’s natural to be concerned about the potential consequences, including the possibility of imprisonment.

The maximum penalty for this offence is imprisonment for five years. However, if the matter is prosecuted in the Local Court, the maximum penalty that a Magistrate may impose is imprisonment for two years.

When determining the appropriate sentence, the sentencing magistrate or judge will take several factors into account, including:

  1. The objective seriousness of the offence,
  2. Whether you pleaded guilty,
  3. Your prior criminal record,
  4. Your personal circumstances, such as employment and health,
  5. Whether you have shown remorse.

Alternatives to Jail

In some cases, the magistrate or judge may consider alternatives to a custodial sentence, such as a Community Release Order, Community Corrections Order, or an Intensive Correction Order (ICO).

It’s important to seek legal advice and representation from experienced criminal defence lawyers to present your case effectively and explore all available options. They can provide you with guidance tailored to your specific circumstances and work towards achieving the best possible outcome for you.

Entering a guilty plea at the earliest opportunity may result in a maximum discount of 25% off the potential sentence. Additionally, individuals who admit to the offence and seek to avoid a criminal conviction are advised to plead guilty early.

If you’re facing charges of sexual touching and require legal representation, don’t hesitate to contact our experienced team of criminal defence lawyers at Barsha Defence Lawyers. Schedule your free initial consultation today to discuss your case and explore your legal options. We are here to provide you with the guidance, support, and vigorous defence you need during this challenging time.

Facing allegations of sexual touching can be daunting. Contact our experienced team of criminal defence lawyers today to schedule your first free consultation. We’re here to provide the legal guidance and support you need during this challenging time.

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