Sexual Touching (Child Under 10)

The offence of Sexual Touching (Child under 10) carries a maximum penalty of 16 years imprisonment.

What is Sexual Touching (Child under 10)?

The offence of Sexual Touching (Child under 10) is set out in section 66DA of the Crimes Act 1900 (NSW) and states:

Any person who intentionally—

(a)  sexually touches a child who is under the age of 10 years, or

(b)  incites a child who is under the age of 10 years to sexually touch the person, or

(c)  incites a child who is under the age of 10 years to sexually touch another person, or

(d)  incites another person to sexually touch a child who is under the age of 10 years,

is guilty of an offence.

Maximum penalty—Imprisonment for 16 years.

Meaning, it is an offence to touch a child under the age of 10 in a sexual manner and it is also an offence to encourage a child under 10 to sexually touch yourself or another person and to encourage another person to sexually touch a child who is under the age of 10.

This is a very serious offence which requires prompt legal advice. 

Breakdown of Terms

‘Sexual Touching’ in this instance is the touching of a child under 10 with any part of your body or through anything such as clothing, where a reasonable person considers it to be sexual in nature.

The following acts constitute Sexual Touching (Child under 10):

• You encourage your friend to touch the genitals of a child who is under the age of 10;
• You rub the buttocks of a child who is under the age of 10;
• Rubbing the thing of a child who is under the age of 10 in a sexual manner;

What must be proven?

For a person to be found guilty of Sexual Touching (Child under 10), the Prosecution must prove each of the following matters beyond a reasonable doubt:

• You sexually touched a child under the age of 10, or
• You incited the child to sexually touch themselves, or
• You incited a third person to sexually touch the child, or
• You incited the child to sexually touch a third person.

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 Strictly Indictable, which means that it must be finalised (either by way of a trial or sentence) in the District Court. The matter will still start in the Local Court and it will be subject to the Early Appropriate Pleas of Guilty (EAGP) Scheme.

Possible Defences to Sexual Touching (Child under 10):

The following defences may be available for a Sexual Touching (Child under 10) charge:

• Duress
• Lawful correction of a minor (e.g. if you lightly smacked the buttocks of your child for discipline purposes with no intention of arousal)
• Honest and reasonable mistake of fact as to age

Common Questions about Sexual Touching (Child under 10)

Will I receive a criminal conviction?

A conviction and criminal record for this offence is very likely, even if you have no prior criminal convictions. 

In NSW, a Court can impose any of the following penalties for Sexual Touching (Child under 10) 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 Touching (Child under 10)  charge might jeopardise your job or make it difficult to obtain visas for overseas travel. 

Will I go to Gaol for a Sexual Touching (Child under 10) charge?

A Gaol sentence is highly likely for this offence if you are found guilty. 

What if they consented?

A child under the age of 10 years old cannot legally provide consent, so this is not a defence. ‘Consent’ is a tricky legal term and can be read on here [LINK].

Will I end up on the Sex Offenders Register?

If you are convicted of the offence, you will be on the Sex Offenders Register.

What factors affect sentencing for a Sexual Touching (Child under 10)?

• The nature, circumstances, and seriousness of the offence; 

• The use of pressure or threats before or after the offence to ensure the victim’s compliance with the demands made, and subsequent silence; 

• The extent of any injury, emotional harm, loss or damage resulting from the offence; 

• The existence of any aggravating factors; 

• The personal circumstances and vulnerability of any victim due to their age, occupation, relationship to you, or disability; 

• Your prospects of rehabilitation.  

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