Sexual Touching

The offence of Sexual Touching carries a maximum penalty of 5 years imprisonment. 

What is Sexual Touching

The offence of Sexual Touching is contained in section 61KC of the Crimes Act 1900 (NSW) which states:

Any person who without the consent of another person and knowing that the complainant does not consent intentionally sexually touches the complainant, or incites the complainant to touch them, or incites a third person to touch the complainant or incites the complainant to sexually touch a third person, is guilty of an offence and is liable for 5 years imprisonment. 

Meaning, it is an offence if you intentionally touch another person sexually, if they have not given their consent or are incapable of giving their consent. It is also an offence if you encourage a third person to touch another sexually without consent.

Breakdown of Terms

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

What does ‘Consent’ mean?

Consent in relation to Sexual Assault offences is defined within section 61HI of the Crimes Act 1900 (NSW). Consent is a very complicated legal term, you can read more about this in detail here [LINK]

The following acts constitute Sexual Touching:

• You rub the vagina of someone through their pants without their consent
• You rub the breasts of someone without their consent

What Must be Proven?

For a person to be convicted of Sexual Touching, the Prosecution must prove each of the following matters beyond a reasonable doubt:

• You touched another person sexually;
• You encouraged another person to touch the complainant sexually;
• That other person did not consent;
• You knew that person did not consent OR
• You were reckless as to whether they consented; OR
• The belief you held that the person was consenting, wasn’t reasonable

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 for Sexual Touching

The possible ways to defend a Sexual Touching charge include but are not limited to:

• Denying that you sexually touched someone;
• Denying that the other person did not consent;
• Denying that you did not encourage anyone else involved to touch the other person.

Common Questions about Sexual Touching

Will I receive a criminal conviction?

A conviction and criminal record for this offence is likely, depending on the circumstances in which the sexual touching took place.

In New South Wales, a Court can impose any of the following penalties for a Sexual Touching 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 Sexual Touching conviction might jeopardise your job. These matters are serious and it is important that you obtain expert legal advice.

Will I go to Gaol for a Sexual Touching charge?

In most instances, if you are found guilty of a Sexual Touching offence, there is a risk of a sentence but it will depend on the facts and circumstances of your case. 

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