In December 2018, the offence of sexual act replaced ‘act of indecency’ in New South Wales.
The new offence is meant to better describe the conduct that is considered to be against the law when it comes to non-consensual acts towards other persons that do not involve touching but are nevertheless sexual in nature.
The offence of sexual act is considered to be less-serious than sexual touching, although it is still treated seriously by the courts.
Sexual act is an offence under section 61KE of the Crimes Act 1900.
The section states that a defendant is guilty of a sexual act if he or she, without the consent of the complainant and knowing the complainant does not consent, intentionally:
A ‘sexual act’ is defined by section 61HC as any act – other than sexual touching – which is carried out in circumstances where a reasonable person would consider it to be sexual.
The section provides that the matters to be taken into account when deciding if the act is sexual include whether:
An act is not considered to be sexual if it is done for genuine medical or hygienic purposes.
The definition makes it clear there does not need to be any touching for an act to be sexual.
Conduct which may constitute a sexual act includes:
The maximum penalty for carrying out a sexual act is 18 months in prison.
The maximum penalty increases to two years if the offence was committed against a child who was at least 10 years of age but less than 16; see section 66DD.
The maximum is 7 years if the child was under the age of 10; see section 66DC.
It is important to bear in mind that these are maximums and the court can impose any of the following penalties for a sexual act:
However, and Intensive Correction Order is not available where the sexual act involved a person under the age of 16.
For a defendant to be found guilty of a sexual act, the prosecution must establish each of the following elements of the offence:
The prosecution will fail if it cannot prove each of these elements beyond reasonable doubt.
In addition to the requirement that the prosecution must prove each element of the offence, it must also disprove any of the following defences if properly raised:
Before you can be found guilty of a sexual act, the prosecution must prove beyond reasonable doubt that:
There are a number of ways to defend sexual touching charges, including raising the fact that:
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 – where the case involves a person under the age of 16 – a defended hearing or jury 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 – in the case of a child under 10 – a defended hearing or jury trial.
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