Sexual Touching

What is sexual touching?

Sexual touching is contained in section 61KC of the Crimes Act and replaced the offence of indecent assault in 2018. The definition of sexual touching is when a person touches another person, with any part of the body, or with anything else, directly or through anything (e.g clothes) in circumstances where a reasonable person would consider the touching to be sexual.

There is an exception for genuine medical and hygienic purposes. However a charge can arise in circumstances where a person incites another person to do the touching.

The maximum penalty for sexual touching is imprisonment for up to 5 years.

A court considers a number of things when determining whether the offence of sexual touching has been committed. This includes:

• The area of the body touched (e.g a genital area, the persons breasts etc);
• Whether or not the person doing the touching was doing it for arousal or sexual gratification; or
• Whether anything else about the context or cicrumstances makes the touching sexual.

What is aggravated sexual touching?

The offence of sexual touching is considered to aggravated when it occurs in in one or more of the following circumstances:

• The accused was in the company of another person or persons
• The victim was (whether generally or at the time of the commission of the offence) under the authority of the accused
• The victim had a serious physical disability
• The victim had a cognitive impairment

Aggravated sexual touching is contained within section 61KD of the Crimes Act. As it is more serious than sexual touching the maximum penalty is increased to up to 7 years imprisonment.

What is sexual act?

Sexual act is contained within sections 61KE and section 61KF of the Crimes Act. In 2018 this offence replaced what was previously referred to as an act of indecency.

A sexual act is any act, other than sexual touching, which is done where a reasonable person would consider the act to be sexual.

Things that are considered when deciding if the touch was sexual include:

• The area of the body involved (e.g a genital area, the persons breasts etc);
• Whether or not the person was doing the act for arousal or sexual gratification; or
• Whether anything else about the context or circumstances makes the act sexual.

It is different to a charge of sexual touching because of there does not need to be any physical touching, assault or battery. The act merely needs to be in the presence of or towards another person.

It is also an offence to incite someone else to commit a sexual act. Much like sexual touching, there is an exception for medical purposes and there are circumstances of aggravation which can increase the maximum penalty.

The maximum penalty for this offence is up to 18 months imprisonment or up to 7 years imprisonment where the the sexual act is committed in circumstances of aggravation.

What if you’ve been charged with sexual act or sexual touching?

It is critical that you speak to a specialist criminal lawyer  before speaking with police. Offences of a sexual nature are extremely serious and can mean terms of full time imprisonment if you are found guilty.