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Sexual Touching with a Young Person Under Special Care

Sexual Touching of a Young Person Under Special Care is an offence under section 73A of the Crimes Act 1900, which carries a maximum penalty of 2 years in prison where the young person was at least 17 but less than 18 years of age, or 4 years in prison where the young person was at least 16 but less than 17 years of age.

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

  1. You sexually touched a young person, or you incited a young person to sexually touch themselves, or you incited a third person to sexually touch a young person, or you incited a young person to sexually touch a third person, and
  2. You did so intentionally

‘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.

Matters that are relevant when determining 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

A ‘young person’ is a person aged at least 16 but less than 18 years.

A young person was under your ‘special care’ if:

  1. You were his or her step-parent, guardian, authorised carer, or the de facto partner of his or her parent, guardian or authorised carer
  2. You were a member of the teaching staff at his or her school
  3. You established a personal relationship with him or her in connection with the provision of religious, sporting, musical or other instruction
  4. You were a custodial officer at an institution where he or she was an inmate, or
  5. You were a health professional and he or she was your patient

You cannot be found guilty if you were married to the young person.

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

Duress is a defence to the charge.

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