In December 2018, the offence of sexual act replaced ‘act of indecency’ in New South Wales.
The new offence is meant to better describe the conduct that is considered to be against the law when it comes to non-consensual acts towards other persons that do not involve touching but are nevertheless sexual in nature.
The offence of sexual act is considered to be less-serious than sexual touching, although it is still treated seriously by the courts.
What is the Offence of Sexual Act?
Sexual act is an offence under section 61KE of the Crimes Act 1900.
The section states that a defendant is guilty of a sexual act if he or she, without the consent of the complainant and knowing the complainant does not consent, intentionally:
- carries out a sexual act with or towards the complainant, or
- incites the complainant to carry out a sexual act with or towards the defendant, or
- incites a third person to carry out a sexual act with or towards the complainant, or
- incites the complainant to carry out a sexual act with or towards a third person.
A ‘sexual act’ is defined by section 61HC as any act – other than sexual touching – which is carried out in circumstances where a reasonable person would consider it to be sexual.
The section provides that the matters to be taken into account when deciding if the act is sexual include whether:
- the area of the body involved in the act 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 act, or the circumstances surrounding the act, make it sexual.
An act is not considered to be sexual if it is done for genuine medical or hygienic purposes.
The definition makes it clear there does not need to be any touching for an act to be sexual.
Conduct which may constitute a sexual act includes:
- masturbating in front of the complainant,
- inciting the complainant to masturbate,
- carrying out a simulated sexual act, or
- inciting the complainant to carry out a simulated sexual act.
What are the Penalties?
The maximum penalty for carrying out a sexual act is 18 months in prison.
The maximum penalty increases to two years if the offence was committed against a child who was at least 10 years of age but less than 16; see section 66DD.
The maximum is 7 years if the child was under the age of 10; see section 66DC.
It is important to bear in mind that these are maximums and the court can impose any of the following penalties for a sexual act:
- Section 10 Dismissal
- Conditional Release Order
- Community Correction Order
- Intensive Correction Order
However, and Intensive Correction Order is not available where the sexual act involved a person under the age of 16.
What Does the Prosecution Have to Prove?
For a defendant to be found guilty of a sexual act, the prosecution must establish each of the following elements of the offence:
- That the defendant carried out a sexual act towards the complainant, incited a third person to do so or incited the complainant to carry out a sexual act,
- That the complainant did not consent, and
- That the defendant knew consent was not given, or was reckless as to whether consent was given.
The prosecution will fail if it cannot prove each of these elements beyond reasonable doubt.
What are the Defences?
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
Pleading Not Guilty
Before you can be found guilty of a sexual act, the prosecution must prove beyond reasonable doubt that:
- You carried out a sexual act in the presence of the complainant or incited another to do so,
- You did not have consent to carry out the act, and
- You knew that consent was not given, or were reckless as to whether it was given.
There are a number of ways to defend sexual touching charges, including raising the fact that:
- The prosecution cannot prove there was a sexual act,
- The prosecution cannot prove an act was carried out towards or by the complainant,
- The prosecution cannot prove you were the person who carried out any such act or that you incited the complainant or another to do so,
- The prosecution cannot prove you acted intentionally or recklessly,
- The prosecution cannot prove a lack of consent;
- The act was for a proper medical or hygienic purpose, or
- You were coerced or threatened into committing the act, or it was undertaken in self-defence or out of necessity.
If any of these matters prevail, you must be found not guilty of the offence.
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 – where the case involves a person under the age of 16 – a defended hearing or jury 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 the police ‘facts’ to reduce the seriousness of the offence.
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 – in the case of a child under 10 – a defended hearing or jury trial.
Frequently Asked Questions
Why Choose Sydney Criminal Lawyers®?
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Here are 12 reasons to choose our multi-award winning legal team:
- 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.
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Our entire firm is exclusively dedicated to criminal law – which makes us true specialists. All of our lawyers have years of experience representing clients in criminal cases, and our principal has been certified by the Law Society of NSW as an Accredited Criminal Law Specialist since 2005. An ‘Accredited Specialist’ is a lawyer who has practised for at least 5 years in a particular field of law (such as criminal law), has passed a rigorous assessment process conducted by the Law Society of NSW, and has been selected by the Specialist Accreditation Committee of the Law Society as an expert in the field. Accredited Specialists are required to undertake more training each year than other lawyers and must be successful in having their accreditation renewed every year. Specialist Accreditation is the mark of a true specialist.Our firm’s specialist experience ensures you receive the best possible result, whatever your criminal law case may be.
- 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.The result is a firm which delivers optimal outcomes in the shortest time periods, at the least expense and stress to our clients.
- 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. Our lawyers regularly consult one another to stay ‘ahead of the pack’ in the ever-changing field of criminal law – constantly devising, refining and implementing specialised techniques which ensure our clients achieve the best possible outcomes. A team approach is particularly important when it comes to serious criminal cases such as murder, commercial drug cases, serious and sexual assaults, large-scale fraud, robbery and other ‘indictable’ cases.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.
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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 email@example.com.
Recent Success Stories
- Client Not Guilty of Sexual Touching and Police Ordered to Pay Costs
- Not Guilty of Two Counts of Sexual Assault and Two of Indecent Assault
- Not Guilty of Multiple Sexual Assault and Aggravated Indecent Assault Charges
- Not Guilty of Indecent Assault Allegations
- Mental Health Application Successful for Indecent Exposure
- Defence Strategy Forces DPP to Drop Sexual Assault Trial
- Not Guilty of Indecent Assault
- All Indecent Assault Charges Dropped and Costs Ordered Against Police
- Indecent Assault Charges and AVO Dismissed
- Another Sexual Assault Case Dropped