Law on Sexual Touching in NSW

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It’s reported that 51-year-old doctor Ramin Harirchian has been found guilty of sexually assaulting his female patient during consultation.

Harirchian had pleaded ‘not guilty’ at the Brisbane District Court to the charge of sexual assault after he was accused of sexually assaulting his 26-year-old female patient during consultation.

The 26-year-old patient went to see Harirchian for consultation in respect to her diarrhoea and vomiting in a Brisbane medical centre in October last year.

In respect to the sexual assault count, the jury members at the Brisbane District Court who presided over the trial returned a ‘guilty’ verdict last week on Thursday.

The court, during trial, heard that Harirchian touched his patient’s vagina before putting those fingers into his mouth, saying he wanted to lick her.”

The 26-year-old woman has said that she had previously seen Harirchian as a patient, and that he has said to her that she looks sexy, slapped her bottom and asked her how often she had sex with her husband before touching her vagina without gloves.

The court also heard that he said to her that he had an erection.

Following the finding of guilty, Harirchian was bail refused and placed into custody on remand until his sentence date which has now been adjourned to 6 December.

Presiding Judge Paul Smith said, “Bearing in mind the significant breach of trust, the skin-on-skin contact in the vaginal area, there is a significant chance of an actual custodial sentence”.

It was during the time Harirchian was out on bail for the sexual assault matter that he also committed a large number of further offences, including fraud in respect to pain medication scripts that he manipulated to be in the name of patients to self-medicate his back condition.

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Law on Sexual Touching in NSW

The previously known offence of indecent assault has been replaced by the new offence of sexual touching in NSW.

In NSW, section 61KC Crimes Act 1900 (NSW) prescribes a penalty of up to 5-years imprisonment to anyone who commits the crime of sexual touching.

The maximum 5-years prison penalty applies if the case ends up being dealt with in the District Court of NSW, whereas the maximum penalty of 2-years apply if dealt with in the NSW Local Court.

Where the sexual touching occurs in circumstances of aggravation under section 61KD Crimes Act 1900 (NSW), the maximum penalty increases to up to 7-years imprisonment.

Circumstances of aggravation here is expressed in subsection 2 of s61KD, including:

In the company of someone else; or
Where the alleged victim is under the authority of the alleged offender such as patient and doctor or student and teacher; or
The alleged victim has a cognitive impairment or serious physical disability.

The penalties increase further where the offence is committed against a child.

For example, there is a maximum penalty of 10-years prison if the child is between 10 to 16-years-of-age.

The maximum penalty is 16-years prison if the child is below the age of 10.

Sexual touching refers to a situation where a reasonable person considers the touching as sexual. It will likely be considered sexual where it involves sexual gratification or where the touching is done at a particular part of the body such as genitals.

To be found guilty of sexual touching in NSW, the prosecution is required to prove in court, beyond reasonable doubt the following elements of the crime:

The alleged offender intentionally touched the alleged victim; and
A hypothetical reasonable person considers the touching as sexual and
There was no consent by the alleged victim; and
The alleged offender was aware of the absence of consent.

Click here for a basic outline on how knowledge as to the absence of consent can be proven in court by the prosecution.

What are some of the defences to a charge of sexual touching in NSW? Some of the defences that can apply resulting in the charge being dismissed or even withdrawn earlier in the case include:

Where the touching was unintentional; or
Where the touching not done voluntarily such as sleepwalking; or
Relevant to knowledge as to absence of consent, the alleged offender honestly believed on reasonable grounds that there was consent; or
It occurs for a medical or hygiene reason; or
If any one of the elements of the crime are not proven in court.

Contact our team to discuss the law on this further.

Our specialist criminal lawyers based in Sydney CBD and Parramatta specialise in criminal law.

Published on 02/12/2019