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Mr Spacey has been charged with indecent assault, an offence which has now been superseded in New South Wales by the crime of ‘sexual touching’.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The offence of indecent assault was repealed earlier this month and replaced with the crime of sexual touching.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 Crimes Legislation Amendment (Sexual Consent Reforms) Act 2021 came into effect on 1 June 2022 (NSW), repealing the definition of sexual consent contained in section 61HE of the Crimes Act 1900 (NSW) and inserting a new Subdivision 1A into Division 10 of the Act – a division which deals with sexual offences such as:
- Sexual assault, which is also known as sexual intercourse without consent,
- Sexual touching (known prior to December 2018 as indecent assault), and
- Sexual act (known prior to December 2018 as act of indecency).
The new definition also applies to the aggravated versions of these offences.
The Law Reform Commission
The amendments come on the back of the New South Wales Law Reform Commission’s report entitled ‘Consent in relation to sexual offences’ of September 2020; a 273-page document examining the scope and application of, and potential issues with, then-existing laws relating to sexual consent, and making recommendations for change.
The changes adopt several of the Commission’s recommendations, most notably the repeal of section 61HE and insertion of Subdivision 1A, which contains the new sections 61HF to 61HK.
The stated objective
Section 61HF makes clear that the objective of the new subdivision is to recognise that:
(a) Everyone has a right to choose whether or not to participate in sexual activity,
(b) Consent to sexual activity is not to be presumed,
(c) Consensual sexual activity involves ongoing and mutual communication, decision-making and free and voluntary agreement between participants.
The offences to which the definition applies
Section 61HG states that the definition applies to the following offences:
- Sexual assault under section 61i of the Act, which carries a maximum penalty of 14 years in prison,
- Aggravated sexual assault under section 61J, which carries a maximum of 20 years,
- Aggravated sexual assault in company under section 61JA, which carries a maximum of life in prison,
- Sexual touching under section 61KC, which carries a maximum of 5 years,
- Aggravated sexual touching under section 61KD, which carries a maximum of 7 years,
- Sexual act under section 61KE, which carries a maximum of 18 months, and
- Aggravated sexual act under section 61KF, which carries a maximum of 3 years.
Perhaps it goes without saying that the definition does not apply to acts against those who are under the age of consent – which is generally 16 years in New South Wales (unless the complainant is under ‘special care’, in which case it is 18 years) – because a person of that age cannot give consent in any event.
The definition of sexual consent in New South Wales
Sections 61HH, 61HI, 61HJ and 61HK set out the meaning of sexual consent in our state.
Section 61HH merely clarifies that ‘consent’ has the same meaning as the sections that follow, and ‘sexual activity’ means sexual intercourse, sexual touching and sexual act.
Section 61HI(1) sets out that a person consents to sexual activity if he or she “freely and voluntarily agrees” to the activity.
The subsections that follow attempt to put that broad and potentially ambiguous definition into some practical context, making clear that:
- Consent can be withdrawn by words or conduct at any time,
- Sexual activity that occurs after the withdrawal of consent is deemed to be without consent,
- Consent is not established merely because a person does not offer physical or verbal resistance,
- Consent to one form of sexual activity is not taken as amounting to consent to another. In that regard, the Act expressly states that consent sexual activity with a condom does not amount to consent to such activity without one, and
- Consent to sexual activity on one occasion is not taken as amounting to consent on another.
Circumstances where consent cannot exist
Section 61HJ(1) makes clear that sexual consent does not exist if a person:
- Does not say or do anything to communicate consent (which is sometimes referred as the requirement to obtain affirmative consent),
- Does not have the capacity to consent (due, for example, to a cognitive impairment that requires supervision or social habilitation in connection with daily life activities),
- Is so affected by alcohol or another drug/s as to be incapable of consenting,
- Is unconscious or asleep,
- Participates because of force, fear of force or harm of any kind to him or her, another person, an animal or property, regardless of whether the feared force or conduct actually occurred, or was a single act or an ongoing pattern of conduct,
- Participates because of coercion, blackmail or intimidation regardless of when it occurred or whether it was a single act or an ongoing pattern of conduct,
- Participates because he or she, or another person, is unlawfully detained,
- Participates because he or she is overborne by the abuse of a relationship of authority, trust or dependence,
- Participates because of a mistaken belief about the nature or purpose of the sexual activity, including whether it is for health, hygienic or cosmetic purposes,
- Participates because of a mistaken belief about the identity of the other person or that they are married,
- Participates because of a fraudulent inducement, which is not a misrepresentation about the other person’s income, wealth or feelings.
The section expressly states that these grounds are not exhaustive.
Knowledge about consent
Section 61HK sets out the circumstances where a person is taken to know the person with whom they are engaging in sexual activity does not consent.
Subsection 61HK(1) stipulates that a person is taken to know the other person does not consent to the sexual activity if:
- The person actually knows the other person does not consent,
- The person is reckless as to whether the other person does not consent.
In that regard, a person is ‘reckless’ if he or she realised at the time that consent may possibly be absent but went ahead with the sexual activity regardless; or
- Any belief the person has that the other person consents is not reasonable in the circumstances.
In that regard, subsection 61HK(2) states that sexual activity is not reasonable if the person did not, within a reasonable time before or at the time of it, say or do anything to find out if the other person consents.
Subsection 61HK(3) provides that the requirement of reasonableness does not apply if the defendant shows that he or she had a cognitive impairment or mental health impairment at the time of the conduct, and the impairment was a substantial cause of him or her not saying or doing anything at the time,
Subsection 61HK(4) states that the onus rests on the defendant to prove, on the balance of probabilities, that the belief as to consent was reasonable.
The section forms part of the legal requirement to obtain affirmative consent.
Subsection 61HK(5) states that for the purpose of making a finding regarding consent, the ‘fact finder’ (in other words, the jury in a jury trial, the judge in a judge-alone trial or the magistrate in a Local Court hearing):
- Must consider all of the circumstances of the case including what, if anything, the defendant said or did, but
- Must not consider any self-induced intoxication of the defendant.
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.