A Guide on the Law of Indecent Assault and Sexual Touching in NSW

 

A senior police officer in WA, Andrew Ramsden has been charged for unlawful and indecent assault.

It is alleged that in December 2017, the 48-year-old officer pinched a woman’ buttocks causing her to jump in surprise.

It is reported that the ‘backside pinch’ allegedly occurred in the context where the police officer had participated in an annual wheelchair basketball charity event.

The alleged conduct took place after the game when the woman had asked for a serious photo with members of the police force team.

According to reports, the police officer believed it would be humorous to pinch her back-side buttocks in order to startle her.

The police officer was reported saying either “I hope you take this the right way” or “don’t take this the wrong way”.

 

The Outcome

The Magistrate in this case found that the buttocks pinch by the officer was not indecent assault on the basis that it wasn’t done for a sexual purpose- he was therefore found not guilty.

On an appeal, the WA Supreme Court confirmed and upheld the Local Court Magistrate’s determination and acquitted the officer.

The prosecution’s case was essentially that “the prevailing standards of the community today are that any touching by a man of the buttocks of a woman is inherently indecent”. This argument was rejected by the WA Courts, including the Supreme Court of WA.

The WA Courts have held that a sexual connotation is an essential requirement for an assault to be considered indecent. This means, for someone to be guilty of indecent assault the WA Court say that the alleged conduct must offend community standards of propriety prevailing at the relevant time.

The Western Australia Magistrate, Michelle Ridley is reported saying, that in an era of twerking and easy access to pornography, it wasn’t an indecent assault when police pinch a woman’s backside.

The Magistrate was reported saying, that pinching someone’s buttocks has lost its overtly sexual connotation “in an era of twerking and grinding, simulated sex and easy access to pornography.. But it wasn’t OK to touch people inappropriately then, and it still isn’t now.”

The Magistrate was also reported saying, that in referring to the 1970s and 80s, “a pinch on the bottom was naughty and seen as overtly sexual and inappropriate for that time.” But in reference to nowadays, “the thought of a pinch on the bottom is almost a reference to a more genteel time.”

On the appeal, the prosecution argued that the #MeToo movement is an illustration of the cultural awareness and attitude of societies views on sexual harassment. However, the WA Supreme Court did not accept this argument on the basis of the absence of any evidence being put before the Magistrate where a finding could have been made to show the impact that such a movement has had in the change of community standards.

Dr. Katherine Fallah from the University of Technology Sydney, lecturer in criminal law is reported saying, “the statement about twerking and about porn are offered in a fairly derisory way of talking about things that are very remote from the facts of the case- here we have a woman having a photo taken after… a wheelchair basketball charity event”.

On Twitter, Dr. Fallah said, “I find it quite remarkable that a judge invokes the prevalence of twerking and the ready availability of porn in coming to a determination about public standards regarding sexuality…  is also a very useful illustration of the court’s inability to grasp the very public standards upon which it needs to make a determination. E.g., I think we can safely say that in this Age of Twerk, butts are just as sexual as breasts.”

Sexual Touching and Indecent Assault in NSW

In December 2018, NSW got rid of the charge of ‘indecent assault’ and replaced it with ‘sexual touching’.

 

What is Sexual Touching?

In NSW, sexual touching is when you touch another person in circumstances that the touching is considered sexual by reasonable people under section 61KC Crimes Act 1900 (NSW).

 

What are the Penalties for Sexual Touching?

Sexual touching carries a maximum penalty of imprisonment of up to 5-years. However, as in the majority of cases where this charge is usually dealt with in the Local Court, a Local Court Magistrate only has the power to impose a maximum penalty of up to 2-years jail. The maximum 5-years imprisonment sentence can only be imposed by a court higher than the Local Court i.e. such as the District Court.

These penalties increase where sexual touching is committed against a child. For example:

  • The maximum penalty increases to 10-years imprisonment if the child victim was between 10 to 16 years-of-age.
  • The maximum penalty increases to 16-years imprisonment if the child victim was under 10 years-of-age.

There are also heavy penalties for the offence of aggravated sexual touching under section 61KD Crimes Act 1900 (NSW). Anyone guilty of aggravated sexual touching will face a penalty of up to 7-years imprisonment and/or a fine of up to $11,000.

 

What are Some Defences to Sexual Touching Charges?

A successful defence to sexual touching will result in the charge being dismissed in court or withdrawn by the prosecution early through early negotiations.

Some common defences to sexual touching include, involuntary touching, an honest and reasonable belief that the alleged victim was consenting, accidental touching, or where the touching occurred out of duress or necessity.

 

What the Police Need to Prove in a Sexual Touching Charge

To be found guilty for a sexual touching charge in NSW, the prosecution must first prove each of the following element beyond reasonable doubt in court:

  1. You touched the complainant, or you encouraged another person to do this; and
  2. The court accepts that a ‘reasonable person’ would consider the touching as ‘sexual’; and
  3. The complainant didn’t consent; and
  4. You knew that the complainant didn’t consent.

Aggravated sexual touching requires the prosecution to prove each of the above 4 elements in addition to ‘circumstances of aggravation’.

Click here for an outline of what are the ‘Circumstances of aggravation’ for an aggravated sexual touching offence.

 

The Previous Indecent Assault Laws in NSW

Prior to the new sexual touching laws in NSW, the offence of indecent assault was section 61L Crimes Act 1900 (NSW). It also carried a maximum penalty of up to 5-years imprisonment, but a person could only be guilty of this if:

  1. The alleged offender commits an assault on the complainant. An assault where you do something (intentionally or recklessly) which causes another person to apprehend immediate and unlawful violence; and
  2. There was no consent to do this by the complainant; and
  3. The alleged offender knew that the complainant wasn’t consenting or didn’t consent; and
  4. The alleged conduct by the alleged offender was considered an ‘act of indecency’. An act of indecency was any conduct that right-minded people would consider to be against the community standards of decency, and conduct that offends against currently accepted standards of decency.

There does not need to be a sexual intention for the conduct to be considered an act of indecency. It can be considered an act of indecency without any sexual motive if the touching carries a ‘sexual connotation’.

Sexual connotation can be established by looking at whether the touching was done on the complainant’s genital area, or by looking into which part of the body was used to do the touching.

About Jimmy Singh

Mr. Jimmy Singh is the Principal Lawyer at Criminal Defence Lawyers Australia - Australia's Leading Criminal Defence Lawyers, Delivering Exceptional Results in all Australian Courts.

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