Table of Contents
- The Law on Sexual Touching in NSW
- Punishment Sexual Touching
- Legal Defence to Sexual Touching Offence
Is Sexually Touching Someone a Criminal Offence?
Sexually touching someone without their consent is a criminal offence in NSW. On December 1, 2018, the offence of Indecent Assault was replaced by the offence of Sexual Touching in New South Wales. This change was implemented as part of a comprehensive set of reforms aimed at modernising and bringing greater consistency to sexual offences, particularly those involving children and individuals in special care relationships.
Under the new law, sexual touching carries a maximum penalty of 5 years’ imprisonment. In cases where the offence is aggravated, the maximum penalty increases to 7 years’ imprisonment. These maximum penalties are the same as those that applied to Indecent Assault and Aggravated Indecent Assault (in cases where the victim was 16 years of age or older), respectively.
Additionally, new offences have been introduced to address situations where the complainant is under the age of 16 or between 16 and 18 and under the special care of the accused.
The Law on Sexual Touching in NSW
Sexual touching refers to a situation where a defendant, without the victim’s consent, performs any of the following actions:
- Physically touches the alleged victim in a sexual manner.
- Encourages the alleged victim to sexually touch the defendant.
- Encourages a third person to sexually touch the alleged victim.
- Encourages the alleged victim to sexually touch a third person.
According to Section 61HB of the Crimes Act, a sexual touching offence occurs when a person touches another individual:
- Using any part of their body or any object.
- Through any medium, including clothing or accessories, in circumstances where a reasonable person would consider the touching to be sexual.
When determining if a reasonable person would view the touching as sexual, the court considers the following factors:
- Whether the area of the body touched or doing the touching involves the person’s genital area, anal area, or (in the case of a female, transgender, or intersex person identifying as female) breasts, regardless of their sexual development.
- Whether the person doing the touching intends to obtain sexual arousal or gratification.
- Whether any other aspect of the touching, including the surrounding circumstances, makes it sexual.
To secure a conviction for sexual touching, the police must prove the following:
- That the accused engaged in or caused another person to engage in an act of sexual touching.
- That the act was intentional.
- That there was no consent given for the act, and the accused was aware of the lack of consent or recklessly disregarded whether consent was given.
For an aggravated offence, the police must also prove one of the following:
- The accused was in the company of one or more other individuals.
- The alleged victim is under the authority of the accused, either generally or at the time of the offence.
- The alleged victim has a serious physical disability.
- The alleged victim has a cognitive impairment.
Punishment Sexual Touching
In New South Wales, sexual touching is now considered a new offence, replacing the previous offence of indecent assault. The specific penalties imposed by the court will vary depending on the particular circumstances surrounding the act of touching.
The court has the authority to impose the following conditions:
Conditional Release Order (CRO)
- CROs are typically used for first-time offenders and less serious offences when there is a low risk to the community.
- It involves a court order to maintain good behaviour (no further offences) for a specified period.
- CROs can include various conditions such as drug and alcohol abstention, program attendance, non-association requirements, or appropriate location restrictions.
- A CRO may not result in a conviction, as determined by the court.
- The maximum duration for a CRO is 2 years.
- CROs serve as a warning and allow for diverting less serious offenders from the criminal justice system, freeing up resources to address more concerning offenders. Repeat offences during a CRO may lead to harsher penalties.
Community Corrections Order (CCO)
- CCOs are employed to punish offenders whose offences do not warrant imprisonment or an Intensive Corrections Order (ICO) but are too serious for a fine or lesser penalties.
- CCOs offer a flexible sentence tailored by the court to suit the offender and the nature of the offence.
- Conditions of a CCO can include supervision by Community Corrections Officers, community service work (up to 500 hours), curfews, aiming to hold the offender accountable and reduce the risk of reoffending.
- CCOs can be imposed for up to three years.
Intensive Corrections Order (ICO)
- An ICO order is a custodial sentence determined by the court to be served within the community, prioritising community safety.
- ICOs orders can have a maximum duration of 2 years for single offences or up to 3 years for multiple offences.
- Mandatory supervision is a condition of an ICO, and the court must impose at least one additional condition.
- Additional conditions may include home detention, electronic monitoring, curfews, community service work (up to 750 hours), alcohol/drug bans, place restrictions, non-association requirements, or participation in programs addressing the underlying causes of the offender’s behaviour.
- ICO order are the most severe sentences served in the community but are not available for offenders convicted of murder, manslaughter, sexual assault, sexual offences against children, firearm-related offences, terrorism offences, breaches of serious crime prevention orders, or breaches of public safety orders.
- For domestic violence offence, an ICO can only be considered if the court is satisfied that the victim or likely co-residents can be adequately protected. For example, an ICO with a home detention condition is not eligible if the offender intends to reside with the victim.
Full-Time Imprisonment
- Full-time imprisonment is the most severe penalty imposed by the court, involving incarceration in an NSW correctional centre.
- In most cases, the court establishes a Non-Parole period, which is the minimum time the offender must spend in the correctional centre.
- After the expiration of the Non-Parole period, the offender becomes eligible for release, with the remaining sentence to be served in the community on parole.
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Legal Defence to Sexual Touching Offence
Apart from the obligation to establish each element or aspect of the offence, the prosecution is also required to refute the presence of any of the following defences if raised appropriately:
- Duress: This defence applies when you were subjected to threats or coercion that compelled you to commit the act.
- Necessity: It arises when the act was necessary to prevent or avert a danger or harm.
- Self-defence: This defence comes into play when you engaged in the act to protect yourself or another person.
- Lawful correction of a minor: This defence is applicable if the act was conducted as a lawful form of discipline or correction towards a minor.
The seriousness of the offence of sexual touching varies depending on the circumstances, and the Police can typically establish the required elements without significant difficulty.
Our team of sexual assault lawyer in Sydney possesses extensive expertise in this field, and we encourage you to reach out to us if you require legal representation. We are dedicated to safeguarding your legal rights. Our free consultation lawyers are available to assist you 24/7.
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