Section 61KC Crimes Act 1900
Sexual Touching

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Sexual Touching is an offence under section 61KC of the Crimes Act 1900 which carries a maximum penalty of 5 years in prison, or 10 years where it involves a child between 10 and 16 years of age, or 16 years where it involves a child under 10.

To establish the offence, the prosecution must prove beyond a reasonable doubt that:

  1. Intentionally and without the consent of the other person (the complainant), and
  2. Knowing the complainant was not consenting,
  3. You sexually touched the complainant, or incited the complainant to sexually touch themselves, or incited a third person to sexually touch the complainant, or incited the complainant to sexually touch a third person.

You must be found not guilty if the prosecution is unable to establish those ‘elements’.

‘Sexual Touching’ is defined as touching another person with any part of the body or through anything, including clothing in circumstances where a reasonable person would consider it to be sexual.

The matters to be taken into account when determining whether touching is sexual include:

  1. Whether there is touching of the genitals, or breasts of a female or someone who identifies as female,
  2. Whether the act was for sexual arousal or gratification, and
  3. Whether any other aspect of the touching, or the surrounding circumstances, make it sexual.

Touching is not sexual if carried out for genuine medical or hygienic purposes.

Consent is often a central issue where sexual touching is alleged.

The defences to the charge include:

  1. Self-Defence,
  2. Duress,
  3. Necessity, and
  4. Lawful correction of a minor.

If you are going to court for the offence of Sexual Touching, call Sydney Criminal Lawyers 24/7 on (02) 9261 8881 to arrange a free first conference with an experienced defence lawyer who will advise you of your options and the best way forward, and fight to secure the optimal outcome.

Read on for more information.

The Legislation

Section 61KC of the Crimes Act 1900 deals with the offence of ‘Sexual Touching‘ and reads as follows:

61KC Sexual Touching

Any person (the “alleged offender” ) who without the consent of another person (the
“alleged victim” ) and knowing that the alleged victim does not consent intentionally:

(a) sexually touches the alleged victim, or

(b) incites the alleged victim to sexually touch the alleged offender, or

(c) incites a third person to sexually touch the alleged victim, or

(d) incites the alleged victim to sexually touch a third person, is guilty of an offence.

Maximum penalty: Imprisonment for 5 years.

Why Choose Sydney Criminal Lawyers®?

Going to court can be nerve-racking, but having a strong and compassionate legal team behind you can make the experience significantly easier to deal with.

Here are 12 reasons to choose our multi-award winning legal team:

  1. Proven Track Record of Exceptional Results

    Sydney Criminal Lawyers® consistently achieves outcomes which are in the highest percentile of the Judicial Commission’s sentencing statistics for criminal cases.

    Our legal team devises effective case-strategies and fights hard to have cases dropped entirely or charges downgraded – saving clients the time, expense and stress of a defended hearing or jury trial.

    Where cases nevertheless proceed, our lawyers have an outstanding track record of winning defended Local Court hearings, and complex jury trials in the District and Supreme Courts.

    We also consistently win appeals in the District and Supreme Courts (including the NSWCCA) after clients have received unsatisfactory results with other law firms in the lower courts.We are one of the few firms to achieve successful criminal law appeals in the High Court of Australia.

    Where our clients wish to plead guilty, we frequently achieve ‘dismissals’ and ‘non convictions’ in cases where other lawyers have advised there is no chance of doing so.

  2. Highest Level of Client Satisfaction

    We have the best and most comprehensive client review record of any law firm in Australia.

    Regular communication, accessibility and quality service are our team’s highest priorities.

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  3. Australia’s Most Awarded Criminal Law Firm

    We have received more awards and accolades than any other criminal law firm in Australia. Our team has been awarded “Criminal Defence Firm of the Year in Australia” in a number of prestigious and competitive awards programs for several years running.

    The awards recognise our exceptional track record of results, our outstanding client service, the high level of satisfaction we achieve, the affordability of our services and our overall excellence.

  4. Fixed Fees

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  7. All NSW Courts

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  8. Accredited Specialists

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  9. Results-Focused Law Firm

    Our team is passionate about achieving results, and unlike many other law firms, our lawyers do not have monthly financial ‘budgets’ to meet.

    The absence of budgets means our lawyers are entirely focused on achieving optimal results in the shortest space of time; whether by getting charges dropped or downgraded at an early stage or having cases ‘thrown out of court’.

    Not having budgets also means our lawyers are not under pressure to engage in unscrupulous practices such as unnecessarily adjourning cases or ‘overcharging’ clients – which, sadly, is a common complaint against many other lawyers and law firms.

    No budgets encourages regular consultation between lawyers within the firm – promoting an ‘open door’, team environment where lawyers bounce ideas off one another, formulate case strategy together and benefit from each other’s specialised experience, methods, techniques and insights.

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  10. Team of Lawyers Behind You

    Our clients benefit from the pool of knowledge that only an extensive team of experienced criminal defence lawyers can provide.

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    In such matters, clients reap the benefits of several lawyers devising and executing case strategies which maximise the chances of having cases dropped or downgraded at an early stage, or ‘thrown out of court’ – often saving clients a great deal of cost, time and anxiety.

  11. Familiar with Magistrates and Judges

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    If you are going to court and wish to arrange a free first consultation, call our 24 hour hotline on (02) 9261 8881 or send us an email at

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Recent Cases

Bail Granted Before All Charges Dropped Over Sexual Assault and Strangulation Allegations

Our client is a 30-year old male Uruguayan national residing at Bondi, in Sydney’s Eastern Suburbs.

According to the prosecution’s ‘statement of facts’, the 29-year old female complainant attended a Sunday evening gathering at her friend’s Bondi apartment.

Around 15 other people, including our client, also made their way to the apartment during the course of the evening, where attendees consumed food and alcohol, listened to music, socialised and danced.

At around 1am, a number of the attendees went downstairs to a neighbour’s apartment, where they continued to drink alcohol, listen to music and dance.

Between 2am and 3am, the complainant and our client together with one other female and one male attendee made their way down to the reserve next to the beach. Our client and the complainant walked together. All were intoxicated at the time.

After spending some time there, the complainant agreed to accompany our client back to his apartment. 

The complainant alleged that she then awoke to our client having sexual intercourse with her. She claimed that our client attempted to have penile / anal intercourse with her and, when she resisted, became aggressive and began choking her with his hands, to the point she lost consciousness. 

She claimed to awake to hear him say ‘you’re not going anywhere’.

According to the complainant, after the intercourse had ended, she said she was going to the bathroom before running out of our client’s apartment naked and alerting a passer-by, before police were called.

Police attended our client’s apartment and activated their body worn cameras. They placed our client under arrest.

The body cam footage recorded our client informing the police of the evening’s events and asserting that the sexual intercourse was consensual.

Despite this, police charged our client with five separate criminal offences, being:

  1. Sexual intercourse without consent (penile / vaginal), section 61i Crimes Act 1900
  2. Intentional strangulation without consent rendering incapable of resistance, section 37(1) Crimes Act 1900
  3. Intentional strangulation without consent, section 37(1A) Crimes Act 1900
  4. Attempted sexual intercourse without consent (penile / anal), section 61i Crimes Act 1900 by virtue of attempt provisions contained in section 344A(1) of the Act
  5. Sexual touching without consent (penile / anal), section 61KC(a) Crimes Act 1900

They refused our client bail at the police station.

Upon being contacted that Monday morning, our senior lawyer attended Waverley Local Court and successfully applied for our client’s release on bail.

The complainant attended hospital where she informed medical staff of her version of the events, including that she had not consented to the sexual intercourse was so heavily intoxicated that there were points she had ‘blacked out’. 

Consent was the central issue in the case, and it is important to bear in mind that the definition of consent contained in section 61HE of the Crimes Act 1900 makes clear that: 

“The grounds on which it may be established that a person does not consent to a sexual activity include…. if the person consents to the sexual activity while substantially intoxicated by alcohol or any drug”.

That being so, our defence team immediately went to work to raise doubt regarding the complaint’s assertions regarding the absence of consent and the level of her intoxication.

That work involved, among other things:

  • Identifying and obtaining CCTV footage of the relevant areas by way of both formal requests and – where these weren’t complied with, by subpoena, 
  • Obtaining the complainant’s medical records relating to her admission and briefing a pharmacological expert for an expert opinion about whether the blood alcohol concentration would have been sufficient to render her ‘substantially intoxicated’ to the point she had ‘blackouts’ as alleged,
  • Obtaining our client’s proof of evidence regarding the events, and
  • Obtaining corroborating statements from a number of people who were present on the evening. 

Once the prosecution served its ‘brief of evidence’, it became clear that there were numerous inconsistencies within the complainant’s four statements to police, several unsupported assertions therein as well as claims that were at odds with other evidence.

In addition to this, the defence pharmacological report provided an opinion that the complainant’s level of intoxication would not have rendered her so intoxicated as to have blackouts as she asserted.

By that time, the case had been taken over from the police by the Office of the Director of Public Prosecutions (DPP).

After several weeks of negotiations, including our submission of details ‘representations’ regarding the problems with the prosecution case, the DPP withdrew all charges brought against our client.

He is now free to move forward with his life without the heavy burden of a serious criminal prosecution.

Charges of Sexual Touching Without Consent Dropped

Our client is employed with an information technology company in Sydney.

He was charged with one count of sexually touching a female without her consent.

The accusations arose after a work Christmas party in North Sydney.

According to the police, the complainant and our client attended the party and had several alcoholic drinks.

Later in the night, a group of 13 people from the party proceeded to a bar in the Sydney CBD.

The complainant and two of her friends then invited our client to the complainant’s unit in Chatswood, in Sydney’s northern suburbs.

The complainant told police that after eating food at the apartment, she fell asleep on the couch before awaking to our client lying beside her and stroking her vagina.

She told police the next day that she did not consent to the conduct, and officers swiftly arrested and charged our client with sexual touching against.

The conduct of police was immature given their failure to investigate the credibility of the allegations before pressing charges; indeed, charges were brought before police interviewed those present at the apartment, let alone at the Christmas party.

The investigative work was therefore left to our defence team, who quickly obtained statements that undermined the allegations regarding the lack of consent.

It is unfortunate that despite the enormous resources at the disposal of police, they frequently see fit to press charges against people without undertaking investigative work.

This is partly due to the fact that, unlike police officers in countries such as the United States who must establish ‘probable cause’ before they can charge a person with a criminal offence, officers in our state need only a ‘suspicion on reasonable grounds’ to press charges – which is akin to a ‘shoot first and ask questions later’ state of affairs.

The prosecution withdrew the charge pursuant to defence ‘representations’, which are detailed written submissions identifying inconsistencies, deficiencies and other weaknesses in the police case and formally requesting the discontinuance of proceedings.

Bail Granted Despite Allegations of Serious Child Sexual Offences

Our client is a 38-year old truck driver from the Penrith area.

He has been charged with eight separate sexual offences against a child over a period of time, being:

  1. Indecent assault, person under the age of 16 years
  2. Sexually touching of child, 10 to 16 years of age
  3. Aggravated sexual intercourse with child, 10 to 14 years of age (strictly indictable)
  4. Aggravated sexual intercourse with child, 10 to 14 years of age (strictly indictable)
  5. Sexual touching of child, 10 to 16 years of age
  6. Aggravated sexual intercourse with child, 10 to 14 years of age (strictly indictable)
  7. Aggravated sexual intercourse with child, 10 to 14 years of age (strictly indictable)
  8. Sexually touching of child, 10 to 16 years of age

A ‘strictly indictable’ offence is one which must be referred to a higher court, such as the District Court, due to its seriousness. It cannot be finalised in the Local Court.

Several of the charges, being counts 3, 4, 6 and 7 are ‘show cause’ offences, meaning that for the purposes of a bail application the onus of proof shifts to the defence which is required to convince the court that there are strong reasons for bail to be granted.  If the defence is unable to do so, the defendant must be remanded in custody, in other words remain in prison, while their case goes through the courts – a process that can take years for a case of this nature.

The prosecution alleges that our indecently assaulted his daughter (indecent assault is the predecessor to the offence of sexual touching) when she was between the ages of 6 and 7 years, and continued to engage in sexual activity with her including sexual intercourse without consent (also known as ‘sexual assault’) for years thereafter.

Our client vehemently denies the allegations, providing us with details regarding the improper motivation for the complaints as well as the events surrounding the alleged offences.

Using that information, our defence team immediately went to work accumulating material to support our client’s instructions, which assisted immensely in overcoming the show cause requirement and securing bail for our client in the Local Court, by undermining the complainant’s version of events as well as raising questions regarding the credibility of the complaint.

Our client is therefore at liberty pending the finalisation of the proceedings.

It is a fundamental tenet of our criminal justice system that a person is presumed innocent until and unless he or she is proven to be guilty in a court of law and, despite the undermining of this important principle through amendments to the Bail Act, including the introduction of ‘show cause’ provisions, it is imperative that criminal defence lawyers fight for the liberty of their clients through thoroughly prepared and persuasively presented bail applications, however serious the allegations may be.

Not Guilty of Sexual Touching Without Consent

Our client is a 44-year old male doctor who resides in the northern suburbs of Sydney.

An allegation was made that he committed the offence of ‘sexual touching’ (previously known as ‘indecent assault’) against a 14-year old girl, who was a patient.

The basis of the allegation was that, during a consultation, our client inappropriately massaged and hugged the girl while having discussions of a sexual nature.

The girl reported the alleged conduct to her father, who then obtained our client’s telephone number and sent him text messages.

Our client returned the messages, saying he was sorry the girl was upset. He made no admissions to the alleged conduct.

The father then took his daughter to a police station to formally report his daughter’s allegations.

Police then contacted our client, who vehemently denied the allegations, asserting he did not inappropriately touch the girl. As to his text response to the father, he was adamant he was merely expressing that he was sorry a patient would be upset after a consultation.

Despite this, our client was arrested and charged with one count of engaging in sexual touching. He then contacted our office for a consultation.

During the appointment, our client informed us that the girl initiated a conversation regarding a disturbing sexual incident that occurred at her school, and that he was merely trying to console and provide her with support.

The case was later taken over from police by the Office of the Director of Public Prosecutions (DPP).

In court, our client formally entered a plea of not guilty.

‘Representations’ were sent to the DPP regarding our client’s position and requesting the withdrawal of the charges, but prosecutors decided to proceed regardless – without seeking an additional statement from the complainant as to the matters raised - and the case ultimately reached a defended hearing in the Local Court.

Given the complainant’s age and the nature of the allegations, the prosecution was permitted to use her recorded statement as ‘evidence in chief’ and she appeared via audio/visual link rather than inside the courtroom.

Under cross-examination, the girl admitted to the incident at school that she had described to our client as well as the fact she raised the incident during the consultation. As she was taken through her contact with our client, it became clear she fabricated the allegations of the ‘massage’, and she eventually admitted that she had made this up.

The girl also admitted that our client had been her doctor since she was very young. It became clear during her questioning that, in this context, the ‘hug’ was not inappropriate at all, let alone sexual.

The cross-examination made clear there was no prima facie case against our client (in other words, the evidence was not capable of establishing the offence) and the magistrate dismissed the charges.

Client Not Guilty of Sexual Touching and Police Ordered to Pay Costs

Our client is a 32 year old man who was in Sydney for an information technology project for a multinational company.

He was staying at a hotel in the Sydney CBD when he met a woman in the bar area.

The two had a number of drinks together while engaging in conversation.

At one point, our client had trouble with completing a task which the woman assisting him with, after which our client went to hug her.

While doing this, the woman pulled back and ultimately complained to staff that our client touched her inappropriately on the buttocks and breast.

Our client was adamant he did nothing of the sort and was only trying to give her a hug.

Police were called and arrested our client, conveyed him to the police station and – based solely on the complaint – charged him with sexual touching.

We promptly contacted the hotel to ensure the CCTV footage was not deleted or recorded over.

We subpoenaed the footage and saw that it corroborated our client’s version of the events.

We forwarded detailed representations to police calling for the charge to be withdrawn.

Police refused and the case ultimately proceeded to a defended hearing, after which the charge was withdrawn and police were ordered to pay our client’s legal costs on the basis that they failed to attend to matters (namely to obtaining the footage themselves, before charging our client) which established the innocence of our client.

Not Guilty of Multiple Sexual Assault and Aggravated Indecent Assault Charges

Our client is 37 year old man from Blacktown.

The parents of a 13-year old girl returned home to find him hiding under their daughter’s bed.

They called police who attended the home and interviewed the girl. The teenager told police our client was her boyfriend for the past six months. She claimed the pair had kissed and that he had touched her breasts on a number of occasions. She denied that they had sexual intercourse.

Our client was arrested and conveyed to the police station, where he participated in an interview vehemently denying any intimate relationship between the two.

He was charged with two counts of aggravated indecent assault.

The complainant later gave further statements to the effect that the pair had engaged in several acts of sexual intercourse.

As a result, our client was charged with five counts of sexual intercourse with a person aged under 14 years, an offence which attracts a maximum penalty of 20 years imprisonment, and three counts of committing an act of indecency.

The prosecution served phone records including daily text messages suggestive of a lengthy intimate relationship. Forensic evidence of a mixed DNA profile allegedly containing material from our client and another was also served.

Our team carefully reviewed all material and obtained detailed instructions relating to all alleged encounters.

Most importantly, we subpoenaed all text messages between the pair – as the prosecution had only served selected messages and the full DNA analysis materials.

The full text messages revealed our client’s resistance to any form of sexual relationship.

We arranged for forensic samples to be sent to independent laboratory, which in our view should occur in all cases of a claimed DNA ‘match’.

The laboratory provided a report to the effect there was no definitive match.

Our team also engaged an expert gynaecologist who provided an expert report to the effect that the analysis of the complainant was inconsistent with her (latter) account of having sexual intercourse with our client on the day police were called to the home.

The prosecution nevertheless took the case to trial in Sydney West Trial Courts, Parramatta.

Our defence team systematically took apart the prosecution case through careful use of defence materials and expert cross examination, revealing the major inconsistencies in the complainant’s statement, ensuring the jury had a full account of the nature of the relationship between the complainant and defendant, and raising doubt regarding the veracity of the DNA evidence.

The jury ultimately returned verdicts of not guilty to all of the charges.

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