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Sexual Touching Without Consent

, Sexual Touching Without Consent

Sexual Touching Without Consent

BACKGROUND

Explained in one of our previous articles, the criminal offence known as “sexual touching without consent” was introduced into New South Wales legislation to replace “indecent assault”. Under the offence, the law has now detailed expansive ways that acts of non-consensual physical contact may relate to that of a sexual nature.

WHAT DOES THE LAW SAY?

In order for someone to be found guilty of sexual touching without consent, the accused person must have intentionally:
• sexually touched the alleged victim;
• incited the alleged victim to sexually touch the alleged offender;
• incited a third person to sexually touch the alleged victim; or
• incited the alleged victim to sexually touch a third person.

In essence, section 61KC of the Crimes Act 1900 (NSW) puts forward that a ‘sexual touch’ is one which includes the act of touching another person on any part of the body in circumstances where a reasonable person would consider the touching to be sexual. It is important to note that the offence may be “aggravated” in circumstances where the sexual touching includes any of the following:

• the alleged offender is with another person or persons, or
• the alleged victim is (whether generally or at the time of the incident) under the alleged offender’s authority, or
• the alleged victim has a serious physical disability, or
• the alleged victim has a cognitive impairment.

LACK OF CONSENT IS A VITAL ELEMENT OF THE OFFENCE

Like all criminal offences, certain “elements” or “ingredients” must be present in order to establish the criminality of the accused. These “elements” must be proven through evidence tendered by the prosecution which show that the accused’s conduct has satisfied each element of the offence beyond reasonable doubt.

In the sphere of criminal offences which contain an element of sexual misconduct, the most important element(s) is whether the person touched has not given their informed consent and whether the accused knew or ought to have known that consent was not given.

According to section 61HA(3)(c) of the Crimes Act 1900 (NSW), the prosecution must prove the abovementioned elements beyond reasonable doubt. In any court proceeding, the criminal standard of proof is the highest standard of proof. Should the accused person genuinely, though wrongly, asserted the complainant did consent, then the prosecution has failed to prove that the accused was aware that the complainant was not consenting.

THE STATISTICS

According to the NSW Rape Crisis Centre:

1. One percent of sexual assaults are committed by a stranger.
2. 1 in 5 women in Australia will experience sexual assault at some point their lives.
3. For 1 in 10 adult women who are sexually assaulted, the perpetrator will be their current or past intimate partner. This is also the least likely form of sexual assault to be reported.
4. Younger women experience sexual assault at higher rates than older women.
5. Less than 1 in 5 of those who experience sexual assault will report the crime to the police.
6. In 2010 there were just over 9,500 reports of sexual and indecent assault made to NSW police.
7. 70% of sexual assaults are committed by someone known to the victim. Most commonly the perpetrator is a family member, close family friend, or a person the victim goes to work or school with.
8. Of the remaining 30% of sexual assaults, most are committed by a person the victim meets in a social situation or goes out on a date with.

CASE STUDY: THE SLIGHTEST TOUCHING MAY CONSTITUTE AN OFFENCE

Recently, one of our clients was charged with sexual touching without consent pursuant to section 61KC of the Crimes Act 1900 (NSW). It was alleged that our client had touched the outer bare thigh of a woman he was sitting beside on public transport. According to the submitted police facts and Court Attendance Notice, the touching involved our client’s right hand touching the woman’s inner thigh.

After reporting the incident to police, our client was charged and arrested 7 months later. Unbeknownst to our client at the time, the woman had recorded approximately 44 seconds of footage which very briefly shows contact being made with the woman’s left thigh.

Subsequent to his arrest, our client contacted our Parramatta Criminal Lawyers. After review of the evidence made against our client, as well as the submitted police facts, it was apparent that the police had misrepresented a number of facts which were crucial to ensuring our client’s matter was presented accurately.

As a result, our firm made a number of representations (commonly referred to as negotiations) with police about the amendment of facts in the prosecution’s case. These included:

• Several inconsistencies in the complainant’s statement;
• Unproven facts which were presented as possibly aggravating;
• The opinions of police officers presented as fact contrary to the opinion rule found in section 76(1) of the Evidence Act 1995 (NSW); and
• Facts must be proven beyond reasonable doubt (Leach v The Queen [2007] HCA 3)

After strenuous and consistent negotiations with the police, our client decided to plead guilty in exchange for an amendment of facts which would accurately reflect his actions at sentencing. To that extent, our firm made various submissions which highlighted our client’s favourable attributes and character. This concluded in a tremendous result for our client who walked away with a non-conviction Conditional Release Order ‘CRO’ for a period of 12 months. Keeping in mind that the maximum penalty for an offence under section 61HA(3)(c) of the Crimes Act 1900 (NSW) is 5 years imprisonment, our client received the best possible result.

A CAUTIONARY TALE

This case highlights an important caveat for how people are to view sex related criminal offences. Often times, the briefest touch can constitute an offence if informed consent is not obtained. Our Parramatta lawyers at National Criminal Lawyers® will always recommend that you obtain the best possible advice if you are charged with sexual touching. Remember, whilst a person may be factually guilty of a crime, the legality of the offence must be established by the prosecution beyond a reasonable doubt.

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