It has been reported that Hollywood star Kevin Spacey will be prosecuted in the United States over allegations he performed a sexual act upon an 18-year old at a Massachusetts bar in July 2016.
Boston journalist Heather Unruh accused Mr Spacey last year of plying her son with alcohol before reaching down the young man’s pants and grabbing his genitals.
According to Ms Unruh, her son told Spacey he was 21-years old – which is the legal drinking age in Massachusetts.
Mr Spacey has been charged with indecent assault, an offence which has now been superseded in New South Wales by the crime of ‘sexual touching’.
He is required to appear in court on 7 January 2019.
Sexual touching in NSW
The offence of indecent assault was repealed earlier this month and replaced with the crime of sexual touching.
Sexual touching is an offence under section 61KC of the Crimes Act 1900 (NSW)(‘the Act’) which attracts a maximum penalty of five years’ imprisonment.
The section states that a person is guilty of sexual touching if he or she, without the consent of the alleged victim and knowing there is no consent, intentionally:
- sexually touches the alleged victim, or
- incites the alleged victim to sexually touch the alleged offender, or
- incites a third person to sexually touch the alleged victim, or
- incites the alleged victim to sexually touch a third person.
Section 61HB of the Act defines ‘sexual touching’ touching another person with any part of the body or with anything else, or through anything, including anything worn by either person, in circumstances where a reasonable person would consider the touching to be sexual.
The section provides that the matters to be taken into account when deciding if an act is sexual include whether:
- the area of the body touched or doing the touching is the person’s genital area, anal area or – in the case of a female person, or a transgender or intersex person identifying as female – the person’s breasts, or
- the alleged offender’s actions are for sexual arousal or sexual gratification, or
- any other aspect of the touching, or the circumstances surrounding the touching, make it sexual.
Touching is not sexual if done for genuine medical or hygienic purposes.
Aggravated sexual touching
Section 61KD of the Act prescribes a maximum penalty of seven years in prison where sexual touching occurs in circumstances of aggravation; in other words, where:
- the alleged offender is with another person or persons, or
- the alleged victim is (whether generally or at the time of the incident) under the alleged offender’s authority, or
- the alleged victim has a serious physical disability, or
- the alleged victim has a cognitive impairment.
Sexually touching a person aged between 16 and 18
The age of consent in NSW is generally 16 years, which means a person under that age cannot legally consent to sexual activity.
The corollary is that those who are at least 16 years of age can generally consent.
An exception to that general rule applies to persons who are aged at least 16 years but less than 18 years.
Section 73A of the Act criminalises any act of sexually touching a person of that age where a relationship of ‘special care’ exists.
Such a relationship arises where the alleged offender:
- is the alleged victim’s parent, grandparent, step-parent, guardian or authorised carer, or the de facto partner of such a person, or
- is a member of the teaching staff at the alleged victim’s school, or
- has an established personal relationship with the alleged victim in connection with the provision of religious, sporting, musical or other instruction, or
- is the alleged victim’s a custodial officer, or
- is the alleged victim’s health professional.
The maximum penalty is four years’ imprisonment where the alleged victim is at least 16 but less than 17, or two years where at least 17.
An exception to the offence is where the two are married.
What is consent?
The definition of consent which applies to sexual touching and a number of other sexual offences is now contained in section 61HE of the Act, which replaced section 61HA earlier this month.
Section 61HE provides that a person consents to sexual activity – such as sexual touching – if he or she freely and voluntarily agrees to it.
The section proceeds to state that an alleged offender knows there is no consent if he or she engages in sexual activity, or incites anyone to do so, in circumstances where he or she:
- knows the alleged victim does not consent, or
- is reckless as to whether the alleged victim consents, or
- has no reasonable grounds to believe the alleged victim consents.
In deciding whether there is consent, the court must consider any steps taken by the alleged offender to ascertain whether there is consent.
The court cannot take into account any self-induced intoxication by the alleged offender.
The section makes clear there is no consent where the alleged victim:
- does not have the capacity to consent due to factors such as their age (outlined above) or cognitive ability, or
- does not have the opportunity to consent because they are unconscious or asleep, or
- consents because of threats of force or terror, or
- consents due to being unlawfully detained, or
- consents because of a mistaken belief:
(a) as to the identity of the alleged offender,
(b) that the two are married,
(c) that the activity is for health or hygienic purposes, or
(d) that arises through any fraud.
The grounds upon which it may be established that the alleged victim did not consent include that he or she:
- was substantially intoxicated,
- was intimidated, coerced or threatened in any way, or
- was under the authority or trust of the alleged offender.
The section further makes clear that a failure to resist the activity not in itself to be regarded as establishing consent.
Charged with sexual touching?
If you are accused of sexual touching and require the assistance of lawyers who are vastly experienced and have an outstanding track record of defending sexual cases, call Sydney Criminal Lawyers® 24/7 on (02) 9261 8881.
If you are going to court, we offer a free first conference at one of our many office locations across Sydney, or in Newcastle or Wollongong.