Sexual Touching in New South Wales

In New South Wales, there is a range of offences involving non-consensual sexual contact. These are set out in the Crimes Act 1900 and include sexual assault, sexual touching and sexual acts. Sexual touching is a relatively new offence in New South Wales and is similar to what used to be called ‘indecent assault’. This page provides information about sexual touching in New South Wales, the maximum penalties that apply, and the court processes involved in dealing with a sexual touching charge.

The offence of sexual touching in NSW

Section 61KC of the Crimes Act 1900 contains the offence of sexual touching. Under this provision, it is an offence to do any of the following without consent:

• Sexually touch a person
• Incite a person to sexually touch you
•  Incite the victim to sexually touch someone else.
• Incite someone else to sexually touch the victim

This offence can attract a term of imprisonment of up to five years.

The offence of aggravated sexual touching in NSW

Section 61KD of the Crimes Act 1900 contains the offence of aggravated sexual touching, which is punishable by up to seven years imprisonment. Under this section, it is an offence to sexually touch a person under any of the following circumstances:

• The offender is in company with one or more other persons;
• The victim is under the authority of the offender;
• The victim has a cognitive impairment;
• The victim has a serious physical disability.

What is sexual touching?

Any of the following acts can amount to the offence of sexual touching:

• Touching someone’s genital area, anal area or breasts
• Touching someone in a way a reasonable person would consider to be sexual

The sexual touching may occur through clothing. It may be done with any part of the body or with an object that the offender is manipulating.

What is consent?

Under section 61HI of the Crimes Act 1900, consent means free and voluntary agreement. A person may withdraw their consent to sexual activity at any time and a person who consents to one activity is not to be taken to consent to any other activity.

A person does not consent if:

• They do not do or say anything to indicate consent;
• They lack the capacity to consent;
• They participate out of fear of force or harm;
• They are so intoxicated by alcohol or drugs that they are incapable of consenting;
• They are asleep or unconscious;
• They participate because of coercion, blackmail or intimidation;
• They participate because they are unlawfully detained;
• They participate because of fraud;
• They participate because of the accused’s abuse of a relationship of trust, authority or dependence;
• They participate because they are mistaken about the nature or purpose of the act or mistakenly believe they are married to the offender.

Jurisdiction for sexual touching in New South Wales

Sexual touching matters may be heard in the New South Wales Local Court or in the District Court of New South Wales. When a matter is dealt with in the Local Court, the maximum penalty for a single offence is imprisonment for two years.

Should I plead guilty or not guilty?

If you have been charged with the offence of sexual touching in New South Wales, you should always seek legal advice before deciding how to proceed. Armstrong Legal can provide you with professional and timely advice on:

• The strength of the case against you
• Any defences that may apply
• Any mitigating or aggravating factors in your case
• The likely penalty range
• Whether any of the evidence is challengeable
• Your bail prospects if you are on remanded

Applying for bail on a sexual touching charge in New South Wales

If you have been remanded in custody for sexual touching, Armstrong Legal can help you to prepare an application for bail under the Bail Act 2013. A magistrate will decide whether to grant you bail based on whether there is an unacceptable risk that you will:

• Fail to attend court;
• Commit a serious offence;
• Interfere with witnesses or evidence;
• Endanger a person.

If the court grants you bail, it may impose conditions on your bail. These will be designed to allay any concerns the court has about your release. Some common bail conditions are not to contact certain people such as alleged victims or co-offender and to report to the local police at specified times.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.