Is Sexual Touching Without Consent a Crime in NSW?

It has been reported that shortly after 10:30pm on Tuesday, a woman who was walking home to her apartment in Sydney was allegedly attacked by a naked man.

It is reported that the 29-year-old woman was walking to her apartment when a naked man approached her before allegedly punching her to the ground.

Whilst the woman was on the ground the man allegedly sexually touched her after she was pinned to the ground by him in Belmore on York St.

Police report that the while the woman managed to free herself before running home, “the man chased her and started banging on the door”.

It is believed the man later took cover in an underground car park where NSW police later found the 27-year-old.

When he was approached by police officers, the naked man allegedly assaulted an officer leaving the constable with a fractured tooth and concussion.

The officer was taken to hospital for treatment.

The 27-year-old man has been arrested and charged with offences of sexual touching, assault police occasioning grievous bodily harm (GBH), resist police and common assault.

The man appeared before the Local Court Magistrate in Burwood on Wednesday when he was refused bail.

His case was adjourned in April.

Have a question on sexual touching laws? Call us to arrange a consult with one of our experienced criminal lawyers today.

Is Sexual Touching Without Consent a Crime in NSW?

Yes it is.

In NSW, it’s a crime to sexually touch another person without consent.

If a victim is a child, consent is not a requirement as the law does not consider that a child is capable of giving consent to such conduct.

“Sexual touching” is when a reasonable person considers the touching as ‘sexual’ according to section 61HB Crimes Act 1900 (NSW).

But how is the court to determine whether the conduct is ‘sexual’? this is done by looking into the circumstances, body part used to do the touching, body part touched, and whether there was any sexual gratification or arousal as the motivation behind.

Section 61KC Crimes Act 1900 (NSW) prescribes a 5-year maximum imprisonment sentence for this crime where it is heard in the District Court.

This charge is normally heard in the Local Court, where a local court Magistrate is restricted to imposing a maximum sentence of up to 2-years imprisonment.

These penalties are heavier where the victim is a child.

The maximum sentence is 10-years imprisonment if the victim is aged 10 to 16.

The maximum sentence is 16-years imprisonment if the victim is aged under 10.

There are even heavier penalties for the aggravated version of sexual touching under section 61KD Crimes Act 1900 (NSW).

In addition, where the victim is a child (under 16), the penalty or sentence option of an Intensive Correction Order (ICO) is not available to an offender.

A court in NSW can only find an accused person guilty of sexual touching if the prosecution proves each of the following elements beyond reasonable doubt in court:

1. The alleged offender touched the alleged victim intentionally (or even incited another person to do this); and
2. A reasonable person would consider the touching as sexual; and
3. There was no consent to do this; and
4. The alleged offender knew that there was no consent to so this.

What are the Defences to Sexual Touching?

Where a defence to sexual touching applies to a case, the case will get dismissed. This can happen in court after the hearing finishes or earlier in the court case through negotiations with police conducted by an experienced defence lawyer.

The following are some defences to this charge:

1. Where the touching occurred accidentally or in the ordinary course of the exigencies of everyday life.
2. Involuntary touching by the alleged offender due to a medical condition or unintended reflex action.
3. If the alleged offender held an honest and reasonable belief that there was consent (only applies where the alleged victim is an adult).
4. Where the touching occurred as a result of a medical or hygienic purpose.
5. Duress or necessity.

Sexual touching is the newest form of indecent assault. Indecent assault has now been replaced by the new offence of ‘sexual touching’ in NSW law.

We welcome queries! If you have one, please contact our Sydney criminal law firm today.

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