Sexual Touching Lawyer Sydney

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 consent?

Section 61HE defines the meaning of consent as where ‘the person freely and voluntarily agrees to the sexual activity.’

When can consent not be given?

This is also provided for in section 61HE of the Crimes Act 1900, which provides a number of situations where an individual does not provide consent:

under 16, or
intellectually disabled, or
does not have the capacity to consent (EG. cognitively incapable),
is intoxicated, or
is unconscious or asleep, or
if consent is given because of threats of force or terror
if consent is given where a person has been unlawfully detained; or
if consent is given because of the abuse of a position of authority or trust; or
if there is any mistaken belief as to the person’s identity, or other mistaken beliefs.

The judge or magistrate will consider whether the alleged offender has taken any steps to determine whether the alleged victim has provided valid consent.

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

What is the maximum penalty for these offences?

The maximum penalty for an offence under

Section 61KC – sexual touching
- imprisonment for 5 years
Section 61KD – aggravated sexual touching
- Imprisonment for 7 years

Please note that these penalties are reserved for the most serious cases only.

What are my options?

Plead guilty

This option is recommended only where you accept that:

you knew that the alleged victim did not consent to sexual activity, or
you were reckless as to whether the victim consented, or
you had no reasonable grounds for believing that the victim consented.

A plea of guilty at the first available opportunity entitles you to a maximum sentencing discount of 25 per cent. It demonstrates to the court that you have accepted responsibility for your actions.

What possible outcomes exist?

Community Corrections Orders (“CCO”)
- An offender is placed under the supervision of Community Corrections.
- Example of a CCO is performing service within the community, or being required to undertake mental health treatment.
Full-time imprisonment
- Served in a correctional facility.
- The majority of offender receive a term of imprisonment for this type of offense

Unfortunately, an ICO (a term of imprisonment in the community) is not available for a prescribed sexual offence.

Interestingly of the 13 cases heard for sentence from December 2018 to June 2020, 1 person received a fine for this offence.

Plead not guilty

To prove this charge, the Prosecution must establish, beyond a reasonable doubt that:

you knew that the alleged victim did not consent to sexual activity, or
you were reckless as to whether the victim consented, or
you had no reasonable grounds for believing that the victim consented.

If the Prosecution cannot prove the required elements beyond reasonable doubt, then the court must find you not guilty.

Defences:

Sexual touching did not occur.
Appropriate consent was given.
A reasonable belief was held that consent was given. ie. the accused did not know that the victim did not consent.
Touching was accidental or involuntary (EG. a reflexive action) and therefore unintentional.
The touching was not sexual.
Duress: circumstances may exist where a person has been forced to touch another person.
The touching was for genuine medical or hygienic purposes.