What are the Sexual Touching Laws in NSW?

Poppy Morandin.

A ride share driver has been charged with sexual touching following an alleged incident in Sydney’s north-west last month.

Police will allege that whilst driving a 31-year-old woman home in Kellyville at around 11:50pm, the male driver placed her hand on his genital area.

The woman subsequently left the vehicle, with the matter reported to officers from The Hills Police Area Command.

Following an investigation, officers arrested a man when he attended Castle Hill Police Station.

The 32-year-old man was then charged with incite another to sexually touch them without consent.

He was granted conditional bail and firmly defends the allegations.

Uber’s 2019 Published Report on Assaults

Uber published a report in 2019, focusing on the US, which revealed that 3,045 reported sexual assault cases had occurred in 2018.

Among the reported instances 235 were rape, 280 were classified as attempted rape, and the remainder involved varying levels of assault such as unwanted kisses or groping.

Whilst there is little data available with regards to Australia, a pilot survey has occurred in Victoria which focused on over 100 rideshare and taxi service users.

Sexual harassment was the most common form of harassment experienced by participants.

Furthermore, it found that the number of people reporting incidents of harassment was incredibly low.

13 per cent reported incidents to the rideshare or taxi company and fewer than three per cent reported incidents to the police.

There is a large push to expand research in order to create a national study, determining customer and driver experiences, to enhance safety.

What are the Sexual Touching Laws in NSW?

‘Sexual touching’ means touching another person with any part of the body or with anything else, or, through anything, including anything worn by the person doing the touching or by the person being touched, in circumstances where a reasonable person would consider the touching to be sexual.

In determining whether a reasonable person would consider touching to be sexual, matters to be considered include whether the area of the body touched or doing the touching is the person’s genital area, anal area, or the person’s breasts, whether or not the breasts are sexually developed.

Furthermore, factors to be considered in determining whether it is ‘sexual’ include whether the person doing the touching does so for the purpose of obtaining sexual arousal or sexual gratification and/or whether any other aspect of the touching makes it sexual.

Touching done for genuine medical or hygienic purposes will not be considered sexual touching.

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

It carries a maximum penalty of 5 years imprisonment.

An accused person will be found guilty if it is proven beyond reasonable doubt that they, without consent, and knowing that the alleged victim did not consent, intentionally:

• Sexually touched the alleged victim,
• Incited the alleged victim to sexual touch them,
• Incited a third person to sexually touch the alleged victim, or
• Incited the alleged victim to sexually touch a third person.

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

Pursuant to section 61KD, circumstances of aggravation mean circumstances in which:

• the alleged offender is in the company of another person or persons,
• the alleged victim is (whether generally or at the time of the commission of the offence) under the authority of the alleged offender,
• the alleged victim has a serious physical disability, or
• the alleged victim has a cognitive impairment.

Have a question on this topic of law? Get in touch with our experienced criminal lawyers Sydney branch today.

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