Is it Illegal to Grope a Person in a Club?

Parramatta Eels player Dylan Brown has been charged with five counts of sexual touching without consent, following an alleged incident at the Golden Sheaf hotel in Double Bay.

Brown who is 22 years old, was arrested and taken to Waverley Police Station on the same night by police, following a complaint made by a 20-year-old woman.

The woman and Brown did not previously know each other, prior to the alleged incident.

She alleges that he touched her on the breast five times on the Saturday night, without her consent.

The police facts detail that he is alleged to commit the five counts between 11.19pm and 11.20pm.

His legal representative noted that CCTV of the alleged incident had been reviewed, ultimately stating that: “it does not support the notion that on five separate occasions Mr Brown has approached this young woman and with both hands has touched both of her breasts.”

Brown appeared before Downing Centre Local Court on 7 June 2023, where no pleas were entered to the charges, and it was subsequently adjourned to 28 June 2023.

He has played for the Parramatta Eels in the NRL since 2019 in 95 games, as well as playing five tests for New Zealand.

The NRL have decided that Brown will be stood down from team selection as part of the NRL’s ‘no fault stand down’ policy until he receives clearance to play.

In a statement the NRL said the “decision should in no way be interpreted as a view on the innocence or guilt of the player.”

The Eels said the club had been made aware of the matter and had notified the NRL integrity unit.

“Out of respect for the legal process now under way, the Club will not be making any further comment at this time.” it noted.

The ‘no fault stand down policy’ was introduced in 2019. It essentially prevents players who have been charged with criminal offences from playing until their matter is determined by a court.

The policy is automatically applicable to players who have been charged with ‘serious criminal offences’ which is specified as those carrying a maximum penalty of 11 years imprisonment or more.

However, the NRL’s CEO has discretionary power to decide whether they should be permitted to play even where an offence not classified as a ‘serious criminal offence’.

Therefore, as Brown’s offence does not reach a maximum penalty of 11 years imprisonment, he was stood down due to a discretionary decision by the NRL’s CEO, Andrew Abdo.

The first player to be stood down under the policy was Dragons forward Jack de Belin in 2019.

De Belin was stood down for almost three years, after facing four sexual assault charges.

He continually maintained his innocence and his first two trials resulted in hung juries, with the Director of Public Prosecutions ultimately deciding not to pursue the matter.

Sexual touching is criminalised under section 61KC of the Crimes Act 1900 (NSW).

It carries a maximum penalty of 5 years imprisonment, where dealt with in the District Court.

The offence is classified as a ‘table 2’ offence which means that it will be dealt with in the Local Court unless the prosecutor elects to take it to the District Court.

In the Local Court, the maximum penalty applicable for a single count of the offence is limited to 2 years imprisonment and/or a $5,500 fine.

The prosecution is required to prove, beyond reasonable doubt, that the accused person:

• sexually touched another person,
• incited another person to sexually touch them,
• incited a third person to sexually touch another person, or
• incited another person to sexually touch a third person.

It must also be proven that the alleged victim did not consent, and that the accused knew they did not consent.

Sexual touching is defined as a person touching another person in circumstances a reasonable person would consider to be sexual.

This may occur with any part of the body or with anything else, and through anything, including anything worn by the person doing the touching or by the person being touched.

In determining whether a reasonable person would consider touching to be sexual, factors that may be considered include whether the area of the body touched or doing the touching is the person’s genital area, anal area, or breasts.

It will also be considered whether the person doing the touching does so for the purpose of obtaining sexual arousal or sexual gratification.

If the conduct outlined above is done in ‘circumstances of aggravation’, it carries a maximum penalty of 7 years imprisonment.

As per section 61KD, circumstances of aggravation mean circumstances in which the alleged offender is in the company of another person or persons, or the alleged victim is under the authority of the alleged offender, has a serious physical disability or cognitive impairment.

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