Sexual Touching

When you are charged with a sexual touching offence you will need an expert criminal defence lawyer in your corner to ensure you get the best result possible. Our criminal lawyers often represent clients charged with sexual touching, successfully beating the charge or, where the guilty plea is made, having no convictions being recorded.  This means no criminal record. Whether you are charged with one offence or multiple offences, there are options that you need to know to ensure you get the best outcome. Contact our office today for an initial consultation to discuss your case.

WHAT IS A SEXUAL TOUCHING OFFENCE?

Sexual touching is contained in section 61KC of the Crimes Act and replaced the offence of indecent assault in 2018. The definition of sexual touching is when a person touches another person, with any part of the body, or with anything else, directly or through anything (e.g clothes) in circumstances where a reasonable person would consider the touching to be sexual.

WHAT IS THE MAXIMUM PENALTY?

If the matter is dealt with in the Local Court, the maximum penalty can be imprisonment for two years. However, if the prosecutor elects to have the matter dealt with in the District Court, the maximum penalty increases to imprisonment for five years – and a maximum of seven years if the charges include aggravated sexual touching.

WHAT DOES THE PROSECUTION NEED TO PROVE IN A SEXUAL TOCUHING OFFENCE?

To prove a sexual touching offence, the prosecution must first establish the following beyond a reasonable doubt:

• A person sexually touched another person (the alleged victim) or incited someone else to do so against their will.
• The alleged victim did not consent to the sexual touching.
• The accused knew that the alleged victim did not consent and proceeded anyway.

It is crucial to understand that sexual touching encompasses any form of physical contact, whether it involves direct contact with the body itself or through clothing.

The court considers a number of different factors, including the area of the body that was touched and the intent / perceived intent behind the touching – to determine whether a reasonable person would consider it to be sexual in nature. An indecent act is one which right-minded persons would consider to be contrary to community standards of decency. Where the act has unequivocal sexual connotations, it is unnecessary for the prosecution to prove the purpose of the act was the provision of sexual gratification.

THE LAW

Sexual Touching  

“Sexual Touching is described in the Crimes Act 1990 (NSW) section 61K as; 

61KC   Sexual touching

Any person (the alleged offender) who without the consent of another person (the alleged victim) and knowing that the alleged victim does not consent intentionally—

(a)  sexually touches the alleged victim, or

(b)  incites the alleged victim to sexually touch the alleged offender, or

(c)  incites a third person to sexually touch the alleged victim, or

(d)  incites the alleged victim to sexually touch a third person,

is guilty of an offence.

Aggravated Sexual Touching  

Aggravated Sexual Touching is defined in the Crimes Act as above but is when the sexual touching happens in “circumstances of aggravation” .

The Crimes Act 61KD Aggravated sexual touching defines circumstances of aggravation as;

“Circumstances in which—

(a)  the alleged offender is in the company of another person or persons, or

(b)  the alleged victim is (whether generally or at the time of the commission of the offence) under the authority of the alleged offender, or

(c)  the alleged victim has a serious physical disability, or

(d)  the alleged victim has a cognitive impairment.”

Sexual Touches 

Sexual Touches is described under in the Crimes Act 1990 (NSW) as;

sexual touches means a person touching another person—

(a)  with any part of the body or with anything else, or

(b)  through anything, including anything worn by the person doing the touching or by the person being touched,

in circumstances where a reasonable person would consider the touching to be sexual.

(2)  The matters to be taken into account in deciding whether a reasonable person would consider touching to be sexual include—

(a)  whether the area of the body touched or doing the touching is the person’s genital area or anal area or (in the case of a female person, or transgender or intersex person identifying as female) the person’s breasts, whether or not the breasts are sexually developed, or

(b)  whether the person doing the touching does so for the purpose of obtaining sexual arousal or sexual gratification, or

(c)  whether any other aspect of the touching (including the circumstances in which it is done) makes it sexual.

(3)  Touching done for genuine medical or hygienic purposes is not sexual touching.”

WHAT ARE THE DEFENCES TO SEXUAL TOUCHING?

• Consent: If you can demonstrate that the alleged victim consented to the sexual touching, it can serve as a suitable defence. However, it is essential to note that consent must be freely given and informed, without any coercion or manipulation.
• Honest and Reasonable Mistake: If you genuinely believed that the alleged victim consented to the sexual touching and your belief was reasonable under the circumstances, it may be a viable defence.
• Lack of Intent: If you can establish that the sexual touching was not intentional.
• Alibi: When identification is in issue for the alleged offending you may wish to raise this defence.

WHAT ARE YOUR OPTIONS:

When facing sexual touching charges, you have several options in court. These may include:

• Pleading Not Guilty: Whether you are advised to plead not guilty or not, you have an inherent right to test the prosecution case by challenge the prosecution’s evidence, and fight for your acquittal. There are risks associated with this option and an experienced lawyer will always advise you these factors.
• Pleading Guilty: In some cases, you may be guilty of the charge, but the facts may be in issue. Or you may be guilty of a lesser charge and not the charge that police have laid.
• Make a s14 application: There will not be a finding of guilty should a s14 order be made. You will be diverted under the mental health act for a period of 12 months. You will avoid a criminal conviction with this option.

WHY CHOOSE A CRIMINAL LAWYER FROM CRIMINAL LAWYERS GROUP?

Our Criminal Lawyers are award-winning criminal lawyers that specialise in criminal offences. Whether it’s a traffic infringement or a serious criminal case our lawyers are here to assist in providing you specialised criminal representation.