Sexual Act

Sexual Act is an offence under section 61KE of the Crimes Act 1900 which carries a maximum penalty of 18 months in prison or 2 years if it involves a child between 10 and 16 years of age or 7 years if it involves a child under 10

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

1. Without the consent of the other person (the complainant), and
2. Knowing the complainant did not consent
3. You intentionally carried out a sexual act with or towards the complainant, or incited the complainant to carry out a sexual act with or towards you, or incited a third person to carry out a sexual act with or towards the complainant, or incited the complainant to carry out a sexual act with or towards a third person.

‘Sexual act’ is defined as any act, other than sexual touching, carried out in circumstances where a reasonable person would consider it to be sexual.

Matters considered when deciding whether an act is sexual include:

1. Whether the genital or anal area is involved, or in the case of a female, or a transgender or intersex person identifying as female, the breasts, or
2. Whether the act is for sexual arousal or sexual gratification, or
3. Whether any other aspect or circumstance makes it sexual.

Conduct which may amount to 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.

An act is not sexual if 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