Sexual Touching

Sexual Touching is an offence under Section 61KC of the Crimes Act 1900 which carries a maximum penalty of 5 years in prison, or 10 years where it involves a child between 10 and 16 years of age, or 16 years where it involves a child under 10.

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 was not consenting
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.

You must be found not guilty if the prosecution is unable to establish those ‘elements’.

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

The matters to be taken into account when determining whether touching is sexual include:

1. Whether there is touching of the genitals, or breasts of a female or 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.

Touching is not sexual if carried out for genuine medical or hygienic purposes.

Consent is often a central issue where sexual touching is alleged.

The defences to the charge include:

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