What is sexual touching?

Section 61HB of the Crimes Act, 1900 defines “sexual touching” as touching another person in circumstances where a reasonable person would consider the touching to be sexual. (EG. unwanted kissing.)

Touching is non-penetrative and occurs when a person touches another person with:

  • Any part of their body or with anything else; or
  • Through any material or object, including clothing.

In deciding whether a reasonable person would consider touching to be sexual, regard is given to:

  • the body part touched; or what part of a person’s body is doing the touching; or
  • whether the touching is done for sexual gratification; or
  • other factors that make the touching sexual (EG. surrounding circumstances.)

Touching for genuine medical or hygienic reasons is not sexual touching.

Sexual Touching falls under section 61KC of the Crimes Act 1900 which further provides that sexual touching occurs where any person:

  • Intentionally or *recklessly sexually touches the alleged victim, and
  • does so without the consent of the alleged victim, and
  • knows that the alleged victim does not consent; and
  • a reasonable person would regard the touching to be sexual

*reckless means that you knew that consent might be absent, but you proceeded nonetheless.

Section 61KC further clarifies that sexual touching include circumstances where:

  • the alleged victim is incited to sexually touch the alleged offender
  • a third person is incited to sexually touch the alleged victim
  • the alleged victim is incited to sexually touch a third person.

What is Aggravated Sexual Touching? – s 61KD of the Crimes Act 1900

Aggravated sexual touching is a sexual touching offence (as described above) under circumstances of aggravation.

What are “circumstances of aggravation”? – s 61KD(2) of the Crimes Act 1900

  • the alleged offender is in the company of another person or persons, or
  • the alleged victim falls under the authority of the alleged offender, or
  • the alleged victim has a serious physical disability, or
  • the alleged victim has a cognitive impairment

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