In December 2018, the offence of aggravated sexual touching replaced aggravated indecent assault in New South Wales.
The new offence is meant to more accurately describe the type of conduct that is against the law when it comes to having non-consensual physical contact of a sexual nature with a vulnerable person or in the company of another.
Aggravated sexual touching is less serious than sexual assault offences, although it is still treated seriously by the courts and should be regarded in that way.
Aggravated sexual touching is an offence under section 61KD of the Crimes Act 1900.
The section states that a person is guilty of sexual touching if he or she, without the consent of the complainant and knowing that consent is absent, intentionally and in circumstances of aggravation:
- sexually touches the complainant, or
- incites the complainant to sexually touch him or her, or
- incites a third person to sexually touch the complainant, or
- incites the complainant to sexually touch a third person.
‘Sexual touching’ is defined by section 61HB of the Act as 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 touching 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 defendant’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 it was carried out for genuine medical or hygienic purposes.
‘Circumstances of aggravation’ means where:
- the defendant is with at least one other person, or
- the complainant is under the authority of the defendant, or
- the complainant has a serious physical disability, or
- the complainant has a cognitive impairment.
The maximum penalty for aggravated sexual touching is 7 years in prison if the case is dealt with in the District Court, or 2 years if it remains in the Local Court.
It is important to bear in mind that these are maximums and the court can impose any of the following penalties for aggravated sexual touching:
- Section 10 Dismissal
- Conditional Release Order
- Community Correction Order
- Intensive Correction Order
However, an Intensive Correction Order is not available where the person sexually touched was under the age of 16 years.
For a defendant to be found guilty of aggravated sexual touching, the prosecution must establish each of the following elements of the offence:
- That the defendant touched the complainant or incited another to do so,
- That the touching was sexual,
- That consent was not given to the touching,
- That the defendant knew consent was not given, or was reckless as to whether consent was given, and
- That at least one circumstance of aggravation exists.
A prosecution for the offence of aggravated sexual touching will fail if each of these elements cannot be proved beyond reasonable doubt.
However, an alternative verdict of guilty of sexual touching can be returned if each element except for that of aggravation is established.
In addition to the requirement that the prosecution must prove each element of the offence, it must also disprove any of the following defences if properly raised:
Your Options in Court
Before you can be found guilty of aggravated sexual touching, the prosecution must prove beyond reasonable doubt that:
- You touched the complainant or incited another to do so,
- The touching was sexual in nature,
- You did not have consent to undertake the touching,
- You knew that consent was not given, or were reckless as to whether it was given, and
- That at least one circumstance of aggravation existed.
There are a number of ways to defend sexual touching charges, including raising the fact that:
- The prosecution cannot prove touching occurred,
- The prosecution cannot prove you were the person who did the touching or that you incited another to do so,
- The prosecution cannot prove you acted intentionally or recklessly,
- The prosecution cannot prove the act was sexual in nature,
- The prosecution cannot prove the absence of consent;
- The touching was for a proper medical or hygienic purpose,
- You were coerced or threatened into carrying out the touching, or it was undertaken in self-defence or out of necessity, or
- The prosecution cannot prove that a circumstance of aggravation existed.
If any of these matters prevail, you must be found not guilty of aggravated sexual touching.
However, you may be found guilty of the alternative offence of sexual touching if each element except for a circumstance of aggravation is established.
A good lawyer will be able to make written submissions to the prosecution with a view to having the case against you withdrawn, or fight to have it thrown out of court if it proceeds to a defended hearing or trial.
Where the prosecution evidence is very strong, you may decide to plead guilty to the offence.
In that case, your lawyer may be able to negotiate a lesser charge – such as sexual touching (not aggravated) – as well as the amendment of the ‘agreed facts’ that are handed-up to the court, which can significantly reduce the seriousness of the offence, including the applicable penalties.
Your lawyer can also guide you on obtaining materials which can be handed-up to the court during your sentencing – including a letter of apology, character references and any documents from counsellors or health care professionals you have consulted.
These materials, together with persuasive verbal submissions by your lawyer in the courtroom, can help to ensure you receive the most lenient penalty that is possible in the circumstances.
By pleading guilty at an early stage, you will also be entitled to a ‘discount’ of up to 25% on your sentence – which can lead to a less serious type of penalty being imposed; for example, a section 10 dismissal or a conditional release order rather than a more serious penalty.
You will also be spared the time, expense and stress of a defended hearing or trial.
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- The other person did not consent at the time of the touching, and
- You knew the other person did not consent, or you were reckless as to whether or not they consented.
This means a person cannot consent and later, after the conclusion of the act, claim they did not.
That said, it should be noted that certain people are incapable of giving consent including:
- Those under the age of 16, and
- Those who are at least 16 but under 18 where a relationship of ‘special care’ exists, such as between a parent and child, teacher and student, or health professional and patient.
Additionally, a person with a cognitive impairment cannot give consent to someone who is responsible for their care.
The new offence attempts to better describe and clarify the acts that are prohibited under the law, both with the name of the offence and the definition of touching and the matters relevant to determining whether touching is sexual.
This means one or more of the following situations exist:
- the defendant was with at least one other person when the alleged touching occurred, or
- the complainant was under the authority of the defendant at that time or generally, or
- the complainant was suffering from a serious physical disability, or
- the complainant had a cognitive impairment.