What is the Law and Penalties for Sexual Touching in NSW?

 

Nature of the Allegations

McLachlan is accused of allegedly indecently assaulting Christie Whelan Browne, a leading musical performer who played a leading role in the Rocky Horror Tour in 2014.

Browne alleges that while on tour, McLachlan has touched her inappropriately while on stage as they were performing a sex scene under a bed sheet, which was allegedly obstructing the audiences view.

On another occasion, it is reported that McLachlan has allegedly approached an actress who was seated on a couch in a Melbourne comedy theatre before straddling her on the couch with his knee either side and kissing her neck.

McLachlan is also accused of allegedly revealing himself to an actress on one occasion, and on another occasion, he allegedly hugged her while only bearing boxers. The actress alleged that, “he pushed his pelvis into me and moved around so I could feel his penis against my body.”

Another actress has also come forward alleging that she was indecently assaulted by the actor in 2014 during the Rocky Horror season.

The actor’s spokesman has said, “Criag is innocent of these charges which will be vigorously defended.”

McLachlan’s next court date is listed on 8 February 2019 at the Melbourne Magistrate’s Court.

McLachlan’s Professional Career

The 53-year-old actor is a 1990 Gold Logie winner who is famous for his acting in Home and Away, Ballarat-filmed Doctor Blake Mysteries and Neighbours. He also played roles the West End musical Grease and The Rocky Horror Show.

He has starred in Packed to the Rafters and played a role next to Catherine Zeta-Jones in the 1996 Hollywood movie “Catherine the Great”.

McLachlan has also released a song “Mona”, toured the United Kingdom and Europe with his band before rising to number 3 on the Australian Charts, getting him an ARIA award for the largest selling song of 1990.

Indecent Assault Laws in NSW Have Been Replaced with New Sexual Touching Laws

NSW have replaced the indecent assault offence with the new sexual touching offence.

Sexual touching is now an offence under section 61KC Crimes Act 1900 (NSW). It carries a maximum penalty of up to 5-years imprisonment in the District Court if the case ends up being finalised in the District Court. Otherwise, the maximum penalty that a Local Court Magistrate can impose is up to 2-years imprisonment.

The maximum penalties are heavier if the victim involved in the sexual touching was a child:

  • If the child was between the age of 10-16 years, the penalty is up to 10-years imprisonment.
  • If the child was under 10-years of age, the penalty is up to 16-years imprisonment.

Whilst there are various types of penalties available for a sexual touching offence, the penalty of an intensive correction order (ICO) is not an available option for a Magistrate or Judge where the victim involved in the offence was less than the age of 16-years.

A person can only be guilty of sexual touching if the court is satisfied by the prosecution beyond reasonable doubt as to each of the following elements:

  1. The accused person intentionally touched the victim or incited someone else to do this; and
  2. A hypothetical reasonable person will consider the touching was ‘sexual’; and
  3. The victim did not consent to the touching; and
  4. You knew that the victim was not consenting to the touching at the time.

An accused person will be considered by the court to have known that the alleged victim was not consenting to the touching in any one of the following scenarios (if it is proven beyond reasonable doubt by the prosecution):

  • The accused person had turned his/her mind to the possibility that the alleged victim did not consent, but took the risk anyway; or
  • The accused person didn’t care as to whether the alleged victim was consenting at the time; or
  • The accused person didn’t even turn his/her mind to the issue of whether the alleged victim was providing consent at the time; or
  • The accused person knew that the victim didn’t consent.

These states of mind can be inferred by the court by looking into the circumstances of the case. This includes, looking at the conduct of the accused person and alleged victim before, during, and after the alleged sexual touching.

What does ‘sexual touching’ mean?

‘sexual touching’ is interpreted in section 61HB Crimes Act 1900 (NSW). It is considered ‘sexual touching’ if a reasonable person will consider the alleged touching between people to be sexual. The court will determine this question by considering the circumstances it occurred, whether there was sexual gratification or arousal involved by the alleged offender and the part of the body touched and part of the body used to do the touching.

Examples of ‘sexual touching’ include touching the breasts or genital area of another person.

What are the Defences to a Sexual Touching Charge?

Defences to a sexual touching charge includes any one or more of the following:

  • Accidental touching in the course of ordinary exigencies of everyday life.
  • Where the touching was involuntary, for example due to an unintended reflect action, sleepwalking, post-traumatic loss of control from head injury, epilepsy or certain traumas.
  • The accused person held an honest belief, which was held on reasonable grounds, that the alleged victim was consenting at the time.
  • The accused person did the touching for medical or hygienic purposes.
  • The accused person was acting under duress or necessity.
  • A reasonable person will consider that the alleged touching is not considered ‘sexual’.
  • Where any one of the above 4 elements of the offence is not proven by the prosecution beyond reasonable doubt.

The Previous Known Offence of Indecent Assault

An assault is where you intentionally or recklessly do something that causes the victim to apprehend immediate and unlawful violence. This can be physical or verbal conduct.

Physical assault involves ‘battery’ which involves touching someone without consent.

One can commit an assault recklessly where he/she realised the likelihood of inflicting the fear or injury on the victim but proceeded with that conduct anyway.

Reckless assault is considered less serious than intentionally assault.

With this in mind, the ‘act of indecency’ combined with ‘assault’ is what generally made up the previously known offence of ‘indecent assault’ in NSW. An ‘act of indecency’ was any conduct considered to be against the community standards of decency by right minded people. It involved conduct that would offend against our current accepted standards of decency.

However, for the conduct to have been properly categorised as indecent, the conduct must have had a ‘sexual connotation’. ‘Sexual connotation’ is interpreted by looking at what area of the body was touched, what was used to touch that body area, and the circumstances of the conduct.

For more information on sexual offences, see our page on sexual offences in NSW.

About Jimmy Singh

Mr. Jimmy Singh is the Principal Lawyer at Criminal Defence Lawyers Australia - Leading Criminal Lawyers in Sydney, Delivering Exceptional Results in all Australian Criminal Courts.

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