The offence of sexual touching in s61KC in the Crimes Act has replaced the previous offence of indecent assault in s61L Crimes Act. The new offence of sexual touching is much broader than indecent assault as the touching by the offender is not strictly required to prove the offence.

The offence of sexual touching under s61KC Crimes Act is a summary offence, accruing a maximum penalty of 5 years imprisonment.

Elements

To successfully prosecute an accused person, the prosecution must beyond reasonable doubt prove the following:

1. The person intentionally
2. Touched the “victim” OR incites the “victim” to touch the accused OR incites a 3^rd party to touch the “victim” OR incites the “victim” to touch the 3^rd party
3. A reasonable person would consider the touching to be sexual
4. The “victim” did not consent
5. The person knew the “victim” was not consenting

Sexual touching, under the Crimes Act, is defined as touching another person:

• With any part of the body or with anything else, or
• Through anything, including anything worn by the person doing the touching or by the person being touched

And in the circumstances, a reasonable person would consider the touching to be sexual in nature. Considerations on whether the touching is of a sexual nature are the areas touched, the purpose of the touching is for obtaining sexual arousal or sexual gratification as well as any other circumstances of the case.

An example of circumstances that would be considered is whether the “victim” was touched in the genital, bottom, and/or breast area of another person.

A more serious offence of aggravated sexual touching is described in s61KD Crimes Act, which sets out the above elements but also includes “circumstances of aggravation”:

• The accused was in the company of another person/s, or
• Alleged victim was under the authority of the alleged offender, or
• Alleged victim has a serious physical disability, or
• Alleged victim has a cognitive impairment

Caselaw

Caselaw under s61KC and s61HB of the Crimes Act since its amendments have been scarce. The amendment focuses particularly on addressing cases of prolonged and persistent child sexual abuse.

Thus, currently, most case law refers to persons who are “disqualified persons” under Child Protection (Working with Children) Act 2012 (NSW), who are looking to obtain a Working with Children Check Clearance.

These persons are mainly disqualified due to a previous allegation or charge of sexual touching/indecent assault. Examples of these cases include Hill v Medical Council of NSW [2019] NSWCATOD 52, Godla v Commissioner of Police, NSW Police Force [2020] FCA 489 and DTC v Children’s Guardian [2019] NSWCATAD 141.

However, it is prudent to look at the caselaw under the indecent assault offence preceding the offence of sexual touching. This is as the broader offence of sexual touching was aimed to replace the offence of indecent assault.

In R v Mohammad Rahman, the defendant was found guilty of multiple counts of indecent assault against women during his position as a doctor in a general practice. The court in this case considered that he was in a position of authority in the doctor-patient relationship.

The court also considered the purpose of the touching, mainly that it was for the purposes of sexual gratification rather than medical purposes as the defendant’s methods were excessive and did not address the patient’s medical issues.

The factors considered by the Court here under indecent assault are similar to the elements and factors considered under the offence of sexual touching.

As reiterated in Regina v Andrew Dean McIntosh [2011], the Court again considered the breach of trust by the offender in committing the sexual touching towards the victim, who was a minor, as increasing the seriousness of the crime.

A previous blog post has also covered the Craig Leifting case which was an aggravated indecent assault case on a minor. If this case were tried currently, it would likely fall under the offence of aggravated sexual touching under s61KD Crimes Act.

Possible Defences

There are a few defences available for the charge of sexual touching. These defences include:

• Consent (s61HE Crimes Act)

For the defence of consent to be proven, the person must have agreed freely and voluntarily to the sexual act.

For the defence of honest belief of consent, a person must have a reasonable belief that the other person consents to the sexual activity.

The Court will consider the circumstances such as the context and any actions/omissions during the event (s61HE(3) Crimes Act).

Note that there are certain circumstances where the person is unable or did not to give consent, this is set out in s61HE(5)-(7) Crimes Act.

• Touching was done for genuine medical or hygienic purposes (s61HB(3) Crimes Act)

Courts in determining “genuine medical or hygienic purposes” may consider whether the purpose of that touching was in relating to a check-up or an illness as well as the typical medical practice for the procedure (R v Mohammad Rahman).

• Touching was unintentional/accidental
• Touching was done under duress
• The touching of the other person was involuntary and resulting from a medical condition, cognitive condition or reflexive action.
• The elements of the offence were not proven in court

This above information is intended as general information and is not intended to be relied on as legal advice.

Pannu Lawyers extensively practice in Criminal Law and regularly appear at Courts throughout New South Wales. If your matter is at Blacktown Local Court, we are conveniently located within a walking distance from the Blacktown Local Court. Call our office on 02 9920 1787 to discuss your matter in a confidential manner.