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Aggravated Sexual Touching

Aggravated Sexual Touching is an offence under Section 61KD of the Crimes Act 1900 which carries a maximum penalty of 7 years in prison.

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

  1. Without the consent of the other person (the complainant), and
  2. Knowing the complainant did not consent
  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, and
  4. You did so in ‘circumstances of aggravation’

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

Factors that are relevant when deciding whether touching is sexual include:
  1. Whether there is touching of the genitals, or the breasts of a female, or the breasts of 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

‘Circumstances of aggravation’ are present where:

  1. You were with another person or persons, or
  2. The complainant was under your authority, or
  3. The complainant had a serious physical disability, or
  4. The complainant had a cognitive impairment

Touching is not sexual if it was carried out for a genuine medical or hygienic purpose.

Defences to the charge include:

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

 

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