Sexual Act

The offence of committing a Sexual Act carries a maximum penalty of 18 months imprisonment.

What is a Sexual Act?

The offence of committing a Sexual Act is set out in section 61KE of the Crimes Act 1900 (NSW) (‘the Act’).

Any person (the ‘accused person’) who without the consent of another person (the ‘complainant’) and knowing that the complainant does not consent intentionally –

• Carries out a sexual act with or towards the complaint, or

• Incites the complainant to carry out a sexual act with or towards the accused person, or

• Incites a third person to carry out a sexual act with or towards the complainant, or

• Incites the complainant to carry out a sexual act with or towards a third person,

is guilty of an offence. 

Any person who carries a Sexual Act with or towards another person without consent is guilty of an offence.

Breakdown of Terms

The definition of ‘Sexual Act’ is defined under section 61HC of the Act, as meaning:

An act (other than sexual touching) carried out in circumstances where a reasonable person would consider the act to be sexual. 

In deciding whether a reasonable person would consider an act to be sexual, the Court will consider the following: 

1. Whether the area of the body involved in the act is a person’s genital area, anal area, or breasts,

1. Whether or not the breasts are sexually developed, and
2. Regardless of the person’s gender or sex, or

1. Whether the person carrying out the act does so for sexual arousal or sexual gratification, or
2. Whether any other aspect of the act (including the circumstances in which it is carried out) makes it sexual.

Any act carried out solely for proper medical or hygienic purposes is not a ‘Sexual Act’ such as a doctor performing a pap smear reasonably.

What Actions / Factors might constitute Sexual Act?

• Public masturbation near someone else
• Exposing your private parts to someone who is near you

What Must be Proven?

For a person to be found guilty of committing a Sexual Act, the Prosecution must prove each of the following matters beyond a reasonable doubt:

• The accused person intentionally carried out a sexual act with or towards the complainant, or
• Incited the complainant to carry out a sexual act with or towards you, or 
• Incited a third person to carry out a sexual act with or towards the complainant, or 
• Incited the complainant to carry out a sexual act with or towards a third person.
• The complainant did not consent to the sexual act,
• That the accused person knows that the complainant did not consent to the sexual act.

If the Prosecution does not prove every single one of the above elements, you will be found not guilty. 

Which Court Will Hear the Matter?

This offence is a Table 2 offence, which means that it will be dealt with in the Local Court unless the Prosecution elects to have the matter dealt with in the District Court.

Possible Defences to committing a Sexual Act:

The following defences may be available for a Sexual Act charge:

• The act was unintentional
• Consent was given by the complainant
• You did not know that there was no consent
• The act was done for medical or hygienic purposes
• Duress

Common Questions about Sexual Act

Will I receive a criminal conviction?

A conviction and criminal record for this offence is very likely.  

In NSW, a Court can impose any of the following penalties for a Sexual Act charge:

• Gaol Sentence
• Intensive Corrections Order (ICO)
• Community Corrections Orders (CCO)
• Conditional Release Order with conviction (CRO)
• Fine
• Conditional Release Order without conviction (CRO)
• S10A
• Section 10 

The consequences of a conviction can be serious depending upon what you do for a living. Some jobs require you to have no criminal convictions and a conviction for a Sexual Act charge might jeopardise your job or make it difficult to obtain visas for overseas travel. Moreover, a conviction for an offence of this nature can completely rule out certain career paths. These types of offences may also result in sentences that include imprisonment even where an individual has no previous convictions.

Will I go to Gaol for a Sexual Act charge?

A Gaol sentence is possible to an offender that pleads or is found guilty of this offence. There is no standard non-parole period for this offence.

What if the other person consented?

Consent is a complicated legal term and can be read about here [LINK]

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