In December 2018, the offence of sexual touching replaced indecent assault in New South Wales.
The new offence is meant to better describe the type of conduct that is against the law when it comes to having non-consensual physical contact of a sexual nature with another person.
Sexual touching is less serious than sexual assault, although it is still treated seriously by the courts and should be regarded in that way.
What is the Offence of Sexual Touching?
Sexual touching is an offence under Section 61KC 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:
- 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.
What are the Penalties?
The maximum penalty for sexual touching is 5 years in prison if the case is dealt with in the District Court, or 2 years if it remains in the Local Court.
The maximum penalty increases to 10 years if the offence was committed against a child who was at least 10 years of age but under 16.
The maximum penalty is 16 years if the child was under the age of 10.
It is important to bear in mind that these maximums and the court can impose any of the following penalties for 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.
What Does the Prosecution Have to Prove?
For a person to be guilty of sexual touching, the prosecution must establish each of the following matters:
- 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, 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 (or ingredient) 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 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, 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 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, or
- You were coerced or threatened into carrying out the touching, 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 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 trial.
Frequently Asked Questions
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:
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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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We are passionate about providing an exceptional level of service to our clients, and we fight hard to achieve optimal results in the shortest period of time.
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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.
We want our clients to know exactly how much their cases will cost from the very start. That’s why we were the first criminal law firm in Australia to publish ‘fixed fees’, back in 2004.
We offer fixed fees for most types of criminal cases and services.Our fixed fees apply to a range of Local Court cases such as drink driving, drug possession, fraud, common assault and AVOs, and also specific services such as prison visits, bail applications, appeals and defended hearings.
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For those who are going to court, we offer a free first conference of up to an hour with one of our Senior Criminal Defence Lawyers.
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Our entire firm is exclusively dedicated to criminal law – which makes us true specialists.
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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.
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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.
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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 firstname.lastname@example.org.
Am I guilty if the touching was accidental?
No. The prosecution must prove beyond reasonable doubt that the touching was intentional or reckless.
What if the other person consented?
For a person to be found guilty of sexual touching, the prosecution must prove beyond reasonable doubt that:
- 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.
What is the difference between indecent assault and sexual touching?
Sexual touching has replaced the offence of indecent assault in NSW.
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.
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