Sexual Touching and Sexual Act - an overview

Sexual Touching and Sexual Act – an overview

After the Royal Commission into Institutional Responses to Child Sexual Abuse, parliament made extensive changes to Division 10 “sexual offences against adults and children” of the Crimes Act 1900 (NSW).

Sexual Touching 

The offence of indecent assault has been repealed. Parliament has introduced the new offence of sexual touching which carries a maximum penalty of 5 years imprisonment. If the offence is committed in circumstances of aggravation (aggravated sexual touching) the maximum penalty is 7 years imprisonment. If the offence is committed against a child under 10 years old the maximum penalty is 16 years imprisonment. If the offence is committed against a child between 10 and 16 years old the maximum penalty is 10 years imprisonment.

 A person commits the offence of sexual touching if the prosecution proves beyond reasonable doubt that:

(a)   The person intentionally sexually touched another person (the complainant) or incited the complainant to sexually touch you or a third person, or incited a third person to sexually touch the complainant.

(b)  That the touching was done so without the complainant’s consent.

(c)   That the person had knowledge that the complainant was not consenting.

Sexual Act

The offence of act of indecency has also been repealed. Parliament has introduced the new offence of sexual act which carries a maximum penalty of 18 months imprisonment. If the offence is committed in circumstances of aggravation (aggravated sexual act) the maximum penalty is 3 years imprisonment. If the offence is committed against a child under 10 years the maximum penalty is 7 years imprisonment. If the offence is committed against a child between 10-16 years the maximum penalty is 2 years imprisonment, or if aggravated 5 years imprisonment.

A person commits the offence of sexual act if the prosecution proves beyond reasonable doubt that:

(a)   The person intentionally carried out a sexual act with or towards another person (the complainant) or incited the complainant to carry out a sexual act towards you or a third person, or incited a third person to carry out a sexual act with or towards the complainant.

(b)  That the sexual act was done so without the complainant’s consent.

(c)  That the person had knowledge that the complainant was not consenting.

The statutory definition of consent and knowledge of consent in s. 61HE of the Crimes Act 1900 (NSW) applies to both the offences of sexual touching and sexual act.

The offences of sexual touching and sexual act are not offences of specific intent. This means that evidence of an accused person’s intoxication at the time of the alleged offending cannot be taken into account in determining whether that person knew the alleged victim was consenting.

If you have been charged with sexual touching or sexual act it is important that you seek advice from an experienced sexual touching lawyer or sexual act lawyer.

This article is of a general nature and is not intended to be relied on in any particular circumstances