Offences of Sexual Touching (NSW)

The offence of sexual touching in NSW generally covers sexual acts of an accused that are allegedly made without the consent of another person but do not involve penetration so as to fall within the more serious category of offence of sexual assault.

Under s 61KC of the Crimes Act 1900 (NSW):

Any person (the “accused person” ) who without the consent of another person (the “complainant” ) and knowing that the complainant does not consent intentionally–

(a) sexually touches the complainant, or

(b) incites the complainant to sexually touch the accused person, or

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

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

is guilty of an offence.

The maximum penalty is 2 years imprisonment and/or 50 penalty units in the Local Court, and 5 years imprisonment in the District Court.

To prove the accused is guilty, the Crown must prove beyond reasonable doubt each of the following four elements which make up the offence.

1. the accused intentionally touched the complainant;
2. the touching was sexual;
3. the complainant did not consent to being touched in that way; and
4. the accused knew the complainant did not consent.

 

1) Intentionally touched

It is relevant to note that the touching does not need to be an aggressive act, or one that caused the complainant fear or pain. Rather, event the slightest contact is enough to amount to touching. However, the touching must be intentional as opposed to accidental.

 

2) The touching was sexual

Section 61HB outlines the definition of ‘sexual touching’:

(1) For the purposes of this Division, “sexual touching” 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.

Subsection (2) outlines matters to be taken into account in deciding whether a reasonable person would consider the touching to be sexual. This includes but is not limited to:

(a) whether the area of the body touched or doing the touching is the person’s genital area, anal area or breasts–

(i) whether or not the breasts are sexually developed, and

(ii) regardless of the person’s gender or sex, 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) The touching was done without the complainant’s consent

This element concerns the complainant’s state of mind at the time of the alleged touching. The Crown is required to prove that the complainant did not freely and voluntarily agree to the sexual touching. Consent can be given verbally or it can be expressed by actions. However, a person who does not offer actual physical resistance is not, by that reason only, to be regarded as consenting.

 

Section 61HK outlines circumstances in which there is no consent:

(1) A person does not consent to a sexual activity if–

(a) the person does not say or do anything to communicate consent, or

(b) the person does not have the capacity to consent to the sexual activity, or

(c) the person is so affected by alcohol or another drug as to be incapable of consenting to the sexual activity, or

(d) the person is unconscious or asleep, or

(e) the person participates in the sexual activity because of force, fear of force or fear of serious harm of any kind to the person, another person, an animal or property, regardless of–

(i) when the force or the conduct giving rise to the fear occurs, or

(ii) whether it occurs as a single instance or as part of an ongoing pattern, or

(f) the person participates in the sexual activity because of coercion, blackmail or intimidation, regardless of–

(i) when the coercion, blackmail or intimidation occurs, or

(ii) whether it occurs as a single instance or as part of an ongoing pattern, or

(g) the person participates in the sexual activity because the person or another person is unlawfully detained, or

(h) the person participates in the sexual activity because the person is overborne by the abuse of a relationship of authority, trust or dependence, or

(i) the person participates in the sexual activity because the person is mistaken about–

(i) the nature of the sexual activity, or

(ii) the purpose of the sexual activity, including about whether the sexual activity is for health, hygienic or cosmetic purposes, or

(j) the person participates in the sexual activity with another person because the person is mistaken–

(i) about the identity of the other person, or

(ii) that the person is married to the other person, or

(k) the person participates in the sexual activity because of a fraudulent inducement.

(2) This section does not limit the grounds on which it may be established that a person does not consent to a sexual activity.

 

4) The accused knew the complainant did not consent

This element relates to the accused’s actual state of mind.

Section 61HK outlines the various ways in which the knowledge element can be made out:

(1) A person (the “accused person” ) is taken to know that another person does not consent to a sexual activity if—

(a) the accused person actually knows the other person does not consent to the sexual activity, or

(b) the accused person is reckless as to whether the other person consents to the sexual activity, or

(c) any belief that the accused person has, or may have, that the other person consents to the sexual activity is not reasonable in the circumstances.

With respect to recklessness, this means that the accused realised that there was a possibility that the complainant did not consent and proceeded regardless, or the accused did not even turn their mind to whether the complainant consented.