Sexual touching, sexual assault and consent in NSW – what the law actually says and what the prosecution must prove
Sexual assault charges in NSW have been rising consistently. BOCSAR data shows sexual assault reports increased by 8.8% over the two years to June 2025, continuing a decade-long trend. The December 2025 BOCSAR report noted that increased willingness to report sexual assault contributed to a 7.9% rise in recorded offences during 2025. More reports mean more investigations, more police interviews, more charges, and more people facing the NSW court system with an allegation that can fundamentally alter their life.
If you have been charged with sexual assault or sexual touching in NSW, or if police have contacted you to arrange an interview about an allegation, the most important things you can do are obtain legal advice immediately and understand what the prosecution actually needs to prove. These offences are taken extremely seriously, carry substantial maximum penalties, and involve complex legal frameworks around consent that have undergone significant reform in recent years. What many people believe about how consent works in law is not what the current NSW legislation actually says.
The offences – what the legislation actually provides
Sexual assault is governed primarily by the Crimes Act 1900 (NSW). The core offence under s 61I is committed where a person has sexual intercourse with another person without the consent of the other person, knowing that the other person does not consent. The maximum penalty is 14 years’ imprisonment. Where aggravating circumstances are present – the accused was in company, used a weapon, inflicted actual bodily harm, or the complainant was under a particular age or condition – the charges and maximum penalties are higher still. Aggravated sexual assault under s 61J carries a maximum of 20 years. Special aggravated sexual assault under s 61JA carries a maximum of life imprisonment.
Sexual touching under s 61KC is a separate and distinct offence from sexual intercourse. It covers intentionally sexually touching another person without their consent. The test for whether touching is “sexual” is objective: whether a reasonable person would consider the touching to be sexual in all the circumstances. The maximum penalty is 5 years’ imprisonment. Sexual touching charges arise in a very wide range of circumstances – from conduct in bars, transport, and public places, to conduct in private settings involving people known to each other.
What consent means in NSW after the 2021 reforms
The consent framework in NSW was substantially reformed by the Crimes Legislation Amendment (Sexual Consent Reforms) Act 2021 (NSW). Under the amended s 61HE of the Crimes Act, consent means a person freely and voluntarily agrees to sexual activity. This sounds simple, but the 2021 reforms made a number of specific and important changes to what this means in practice.
First, the legislation now expressly provides that consent is absent where the person does not say or do anything to indicate consent. This is the affirmative consent model: the absence of refusal or resistance is not consent. The law no longer allows a defendant to rely on the complainant’s silence or failure to object as establishing that consent was given. Consent requires active, positive agreement.
Second, the Act specifies circumstances in which consent is absent regardless of what was said or done: where the person is asleep or unconscious; where they are intoxicated to the point of incapacity; where they submit because of threats or fear of force, whether express or implied; where they are unlawfully detained; where they are mistaken about the nature of the act or the identity of the person; and where they are coerced by abuse of a position of authority or trust.
The mental element – what the accused knew about consent
Proving sexual assault requires proving not only the act but the accused’s state of mind about consent. The accused must have known the complainant was not consenting, or been reckless as to whether they were consenting. The 2021 reforms changed how this mental element is assessed. Under the amended framework, a person is not taken to know the other person consented, or to reasonably believe they consented, only because they did not say or do anything to indicate they did not consent.
More significantly, the 2021 reforms provide that a person’s belief in consent is only reasonable if they took steps to ascertain whether the other person was consenting. A passive assumption of consent – proceeding without asking, without attending to verbal or physical cues, without paying attention to the other person’s responses – is not a reasonable belief in consent under the current law. This is a significant change from the pre-2021 framework and one that many people are not aware of.
The Judicial Commission of NSW has updated its Criminal Trial Courts Bench Book to reflect the 2021 reforms and the directions that must be given to juries about how to assess consent and the accused’s belief in consent. The law now requires active, affirmative steps toward establishing consent, not a passive absence of objection.
How sexual assault investigations are conducted in NSW
Sexual assault investigations in NSW are conducted by specialist investigators, often from the Sex Crimes Squad or specialist SARC (Sexual Assault Referral Centre) trained officers. Complainants are interviewed using a structured technique designed to capture a comprehensive account early and in a way that withstands scrutiny at trial. The first detailed account – given close in time to the alleged incident – carries significant weight.
Physical evidence sought in investigations includes: forensic examination results (DNA, physical injury findings), CCTV from relevant locations, phone records and location data, and any items relevant to the alleged incident. Digital evidence is now central to almost every investigation. Text messages and communications before and after the alleged incident are examined for evidence of the nature of the relationship, any consent given or withdrawn, the accused’s conduct following the incident, and any statements that can be used as admissions or for inconsistency with the accused’s account.
Device extraction from the accused’s phone or computer is standard in modern sexual assault investigations. Courts have confirmed that messages, location records, search histories, and app data are all fair game for investigation. Where an accused deletes messages or attempts to destroy a device after learning of an investigation, that conduct may itself be admissible as evidence of consciousness of guilt.
Tendency evidence in sexual assault trials
One of the most significant and contested features of sexual assault prosecutions is the use of tendency evidence – evidence of prior conduct by the accused showing a tendency to engage in similar sexual conduct. Under Part 3.6 of the Evidence Act 1995 (NSW), tendency evidence is admissible where it has significant probative value that substantially outweighs any prejudicial effect. The High Court in DPP v Roder (a pseudonym) [2024] HCA 15 addressed the use of tendency evidence in sexual assault matters, confirming the need for careful directions to juries to avoid the risk of impermissible circular reasoning. Where a complainant has made prior similar allegations against the same accused, or where there are multiple complainants, tendency evidence applications are frequently made and can substantially strengthen a prosecution case.
What to do if police contact you
If police contact you about a sexual assault allegation – whether to arrange an interview, to serve a court attendance notice, or simply to “have a conversation” – do not attend without first obtaining legal advice. Sexual assault investigations move quickly once a complaint is made, and anything said in an unguarded conversation with police, including at an ERISP interview, can become central evidence in the prosecution’s case. The right to silence is available from the first contact. Exercising it is not an admission of guilt, and in sexual assault matters it is often the most important single decision a person makes.
At National Criminal Lawyers, we have extensive experience defending sexual assault and sexual touching charges across all NSW courts. These are among the most serious and most complex matters in criminal law, and specialist defence representation from the earliest possible stage is essential.
Call us at 1800 CRIM LAW for a free consultation. Help us help you understand your situation and get you the best outcome possible.
