What is a sexual act under section 61KE of the Crimes Act?

The law defines a sexual act as an action that a reasonable person would consider to be sexual. In determining what a reasonable person would consider sexual, the court gives regard to:

  • whether the act carried out involves use of the breasts or genital or anal areas; or
  • whether the act is carried out for the purpose of sexual arousal or gratification; or
  • whether any other aspect of the act categorises it as sexual.

In practical terms, this might amount to: feigning or simulating a sexual act on another person; using electronic media to send nude photos to another person; flashing private parts to another person or public masturbation.

An act carried out for genuine medical or hygenic reasons is not a sexual act according to legislation.

What is an aggravated sexual act? (Section 61KF of the Crimes Act)

It is a sexual act, but with circumstances of aggravation, which is more serious than the general offence. Circumstances of aggravation occur when:

  • the accused person is in the company of at least one other person; or
  • the alleged victim is under the authority of the accused person; or
  • the alleged victim has a serious physical disability, or a cognitive impairment.

NB: Note that prior to 1 December 2018, this offence was known as an Act of Indecency offence.

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