Sexual Touching Offences in New South Wales - Criminal Defence Lawyers Australia

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Sexual touching offences in New South Wales carry heavy penalties that can result in a criminal record, fine and imprisonment. While they carry heavy penalties, the court also has the discretion to impose a lenient sentence, including a section 10 non conviction, conditional release order non conviction with a good behaviour bond for a period of time, usually two years.

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Table Of Contents

What is Sexual Touching?
Penalty for Sexual Touching Offences
How to Prove a Sexual Touching Offence in Court
Defences to Sexual Touching Charges

What is Sexual Touching?

Sexual touching is defined as a person touching another person in such circumstances that a reasonable person would consider to be sexual. This includes touching with any body part or with anything else; or through anything, including anything worn by the person doing the touching or by the person being touched.

The law outlined certain factors in a case to be considered when deciding if a reasonable person would consider the touching to be sexual, including, whether the area of the body touched or doing the touching is the person’s genital area or anal area or (in the case of a female person, or a transgender or intersex person identifying as female) the person’s breasts, whether or not the breasts are sexually developed. Other factors to that must be considered include whether the person doing the touching does so for the purpose of obtaining sexual arousal or sexual gratification, or whether any other aspect of the touching (including the circumstances in which it is done) makes it sexual. These factors are outlined in section 61HB(2) of the Crimes Act 1900 (NSW).

Sexual touching is not illegal if it is done with the voluntary consent of all parties involved amongst adults.

Sexual touching becomes a criminal offence if a person sexually touches another person without the consent of the other person and knowing that the other person does not consent.

What is Aggravated Sexual Touching?

Aggravated sexual touching means any person who touches another person in circumstances of aggravation, which includes any one or more of the following circumstances:

Sexual touches occurs when the accused person is in the company of another person(s); or
The victim is (whether generally or at the tie of the offence) under the authority of the accused person; or
The victim has a serious physical disability; or
The victim has a cognitive impairment.

Penalty for Sexual Touching Offences

Sexual touching is a crime that attracts a maximum penalty of up to five years imprisonment which is prescribed in section 61KC of the Crimes Act 1900 (NSW). This is a Table 2 offence under the Criminal Procedure Act 1986 (NSW) which means that it is to be dealt with summarily in the local court proceedings unless the prosecutor elects to have it dealt with on indictment to be dealt with in the District Court under section 260 of the Criminal Procedure Act 1986 (NSW).

If a sexual touching charge is dealt with summarily in the local court in the absence of the prosecutor electing, the maximum penalty a local court can impose is limited to up to two years imprisonment for a single offence or up to five years for more than one offence.

Not all offenders of sexual touching get imprisonment sentences. In fact, other penalty options are available to the court to impose. The penalty a court imposes is dependant on the seriousness of the offence and the offender’s personal circumstances, such as mental heath, and prospects of rehabilitation. The types of penalty options available include a section 10, conditional release order without conviction or with conviction, community corrections order, Intensive corrections order (ICO), and full time imprisonment.

Penalty for Sexual Touching of Minors

The maximum penalty for the offence of sexually touching a child between the age of 10 and under 16 years is 10 years imprisonment.

The maximum penalty for the offence of sexually touching a child under the age of 10 years is 16 years imprisonment.

When Can the Prosecutor Decide to Elect?

The prosecution can elect to have a sexual touch charge dealt with in the District Court by no later than 14 days before the allocated hearing date in the local court according to Paragraph 4.3 of the Local Court Practice Note Comm 3 according to section 263 (1) of the Criminal Procedure Act 1986 (NSW). If there are ‘special circumstances’ then the prosecutor can elect within those 14 days, but a prosecutor cannot elect in the case of a plea of not guilty after the commencement of the taking of evidence for the prosecution in the local court hearing, or in the case of a plea of guilty, after the presentation of the facts relied on by the prosecution to prove the offence according to section 263 of the Criminal Procedure Act 1986 (NSW).

How to Prove a Sexual Touching Offence in Court

To prove that an accused person has committed the offence of sexual touching in a NSW Court, the onus is on the prosecution from first to last to prove each of the elements of this offence beyond reasonable doubt. The elements of a sexual touch offence is outlined in section 61KC of the Crimes Act 1900 (NSW). If the prosecution fail to prove any one or more of these essential elements, then the accused will be acquitted of the charge which will result in the dismissal of the sexual touch charge.

The essential elements of a sexual touch offence that the prosecution must prove in order to convict the accused are:

The accused intentionally touched the victim; and
The touching was sexual; and
The victim did not consent to being touched that way; and
The accused knew that the victim did not consent.

If the accused act of touching was accidental or involuntary due to a mental infirmity then the prosecution will fail to prove this offence, and the court must return a not guilty verdict.

If the touching in the circumstances would not be considered sexual by a reasonable person, even after considering the body parts involved or used in the touching and purposes of the touching, then the court must return a verdict of not guilty in favour of the accused person. Touching done for genuine medical or hygienic purposes is not sexual touching.

What is Consent ? | Did the Alleged Victim Consent?

The law acknowledges that everyone has a right to choose whether or not to participate in sexual touching. A person cannot make an assumption that another person is consenting. Consensual sexual touching involves ongoing and mutual communication and decision-making and free and voluntary agreement between the persons participating in the sexual touching. This is reflected in section 61HF of the Crimes Act 1900 (NSW).

Consent means the following:

Consent is when a person consents to sexual activity if at the time of doing it the person freely and voluntarily agrees to it.
A person may, by word or conduct, withdraw consent to a sexual activity at any time.
Sexual activity that occurs after consent has been withdrawn occurs without consent.
A person who does not offer physical or verbal resistance to a sexual activity is not, by that reason alone, to be taken to consent to the sexual activity.
A person who consents to a particular sexual activity is not, by that reason alone, to be taken to consent to any other sexual activity.
A person who consents to a sexual activity with a person on one occasion is not, by that reason alone, to be taken to consent to a sexual activity with that person on another occasion or another person on that or another occasion.

Circumstances in which there is no consent include the following non-exhaustive circumstances:

The person does not say or do anything to communicate consent.
The person does not have the capacity to consent to the sexual activity.
The person is so affected by drugs or alcohol as to be unable to consent to the sexual activity.
The person is asleep or unconscious.
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 when the force or the conduct giving rise to the fear occurs, or whether it occurs as a single instance or as part of an ongoing pattern.
The person participates in the sexual activity because of coercion, blackmail or intimidation.
The person participates in the sexual activity because the person or another person is unlawfully detained.
The person participates in the sexual activity because the person is overborne by the abuse of a relationship of authority, trust or dependence.
The person participates in the sexual activity because the person is mistaken about the nature of the sexual activity or the purpose of the sexual activity, including about whether the sexual activity is for health, hygienic or cosmetic purposes.
The person participates in the sexual activity with another person because the person is mistaken about the identity of the other person or that the person is marries to the other person.
The person participates in the sexual activity because of a fraudulent inducement. Fraudulent inducement here does not include a misrepresentation about a person’s income, wealth or feelings.

Defences to Sexual Touching Charges

The accused person is taken to know that the alleged victim does not consent to the sexual touching if the accused actually knows it; or is reckless as to whether the other person consents; or if the accused raises that he or she honestly and reasonable believed there was consent in the circumstances, such a belief is not reasonable in the circumstances.

When an accused person raises the defence of a reasonable belief that the alleged victim was consenting to the sexual touching, the belief that the other person consents is not reasonable if the accused person did not, within a reasonable time before or at the time of the sexual touch, say or do anything to ascertain whether the other person consents to it.

If the evidence shows a possibility that the accused person believed that the alleged victim consented, the prosecution bears the onus to prove beyond reasonable doubt that this belief was not reasonable in the circumstances. If the prosecution fails, then the accused person will be acquitted upon a verdict of not guilty.

The main question here is what would an ordinary person in the accused person’s position have believed at the relevant time having regard to all the circumstances of the case. When considering whether the accused person knew that there was no consent to the sexual touching any self-induced intoxication is not to be taken into account.

An accused person will be taken to be reckless as to whether or not there was consent in any one or more of the following situations:

The accused person realised the possibility that the alleged victim was not consenting but continued in the sexual touching regardless; or
The accused person did not care whether or not the alleged victim was consenting or did not turn his or her mind to the issue, yet went ahead with the sexual touching, even though the risk they were not consenting would have been obvious to someone with the accused’s mental capacity had they turned their mind to it.

If the accused person was suffering from a cognitive or mental health impairment at the time of the sexual touching and that impairment was a substantial cause of not doing or saying anything to ascertain whether the alleged victim consents to the sexual touching, then a failure by the accused person to ascertain whether there is consent is not to amount to an unreasonable belief by the accused person that the alleged victim consents.

If the alleged victim is a child, then consent is not an element that is required to be proven by the prosecution in order to convict the accused person for a sexual touch charge.

If you plead guilty to a sexual touch offence in a New South Wales Court, the Court will be required to sentence you. A sentence is when a court will hear submissions and receive evidence from you or your lawyer to assist the court in reaching a fair penalty.

It is important to seek legal advice from a competent and experienced sexual assault lawyer in pursuing this path. The court has a wide discretion to impose a penalty that it considers the most appropriate to you based on your personal circumstances and the objective seriousness of the offence.

Prior to pleading guilty in court, you may want to negotiate the police facts to be more accurate as to what actually happened. The facts sheet will be handed up to the Judge in court to read- it is critical to ensure that there is nothing in it that did not happen. Once you allow for it to be handed up to the Judge in court, you are presumed to accept everything in it as forming the sexual touching offence.

An early plea of guilty will generally allow the court to discount your penalty. It is important to get early legal advice to avoid missing out on this type of discount on your sentence.

Gathering strong good character letters and a well written apology letter for court can also improve your sentence outcome permitting the Judge to give more leniency.

Amongst the penalty options the court can impose, the most lenient option is a section 10 non conviction or a conditional release order non conviction.

By Jimmy Singh.

Published on 13/06/2025