SEXUAL TOUCHING
Say a male is watching the cricket and his girlfriend comes up to him to engage him in sex or even a sexual act. Assumes, he says “no…I’m watching the cricket”, she continues forward and sexually touches or otherwise performs sex or sexual acts upon him after knowing he said “no”.
In such a case we must seriously ask ourselves what is the likelihood of that offence ever being prosecuted? Most would say slim to none, however now if reported it would be categorised as “sexual touching without consent” or in some cases, sexual assault.
Conversely, assume the male boyfriend does the same to his girlfriend and she reports him to the police…. suffice to say one of the charges police may lay (and is more likely to lay) may be a new charge now on the books called “sexual touching without consent or sexual assault”.
The New South Wales government will fork out $200 million over the next four years to teach schoolchildren how to defend themselves against sexual assault and to teach teenagers that silence doesn’t mean yes.
According to the reports, “If you want sex you have to ask for it and if you want that sex, you have to say ‘yes’,” Prevention of Domestic Violence and Sexual Assault Minister Pru Goward told The Daily Telegraph.
THE STATISTICS
According to the NSW Rape Crisis Centre
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One percent of sexual assaults are committed by a stranger.
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1 in 5 women in Australia will experience sexual assault at some time in their life.
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For 1 in 10 adult women who are sexually assaulted the perpetrator will be their current or past intimate
partner. This is the least likely form of sexual assault to be reported.
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Young women experience sexual assault at higher rates than older women.
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Less than 1 in 5 of those who experience sexual assault will report the crime to the Police.
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In 2010 there were just over 9,500 reports of sexual and indecent assault made to NSW Police.
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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. 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.
WHAT IS SEXUAL TOUCHING WITHOUT CONSENT?
Sexual touching without consent is now of December 2018, the replaced version of indecent assault in New South Wales. In particular indecent assault has now been abolished and replaced with the offence of “sexual touching”.
The new offence is enacted to detail in a more expansive way the types and kinds of conduct that are against the law when it comes to having non-consensual physical contact of a sexual nature with another person.
THE LAW
Sexual touching is now an offence found under section 61KC of the Crimes Act 1900 (NSW) (The Act)
The section states that a person is guilty of sexual touching if he or she, without the consent of the alleged victim and knowing there is no consent, intentionally:
- sexually touches the alleged victim;
- incites the alleged victim to sexually touch the alleged offender;
- incites a third person to sexually touch the alleged victim; or
- incites the alleged victim to sexually touch a third person.
Section 61HB of the Act also defines ‘sexual touching’ as touching another person with any part of the body or with anything else, or through anything, including anything worn by either person, in circumstances where a reasonable person would consider the touching to be sexual.
The offence of sexual touching attracts a maximum penalty of five years’ imprisonment.
AGGRAVATED SEXUAL TOUCHING
Where sexual touching occurs in circumstances of aggravation; in other words, where:
- 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.
Section 61KD of the Act prescribes a maximum penalty of seven years in prison.
WHAT IS CONSENT?
Consent in NSW involves a conscious and voluntary agreement on the part of the complainant to engage in a sexual act with the accused.
Consent can be given verbally or expressed by actions. Consent which is obtained after persuasion is still consent provided that ultimately it is given freely and voluntarily.
CONSENT AND KNOWLEDGE OF THE ACCUSED
Section 61HA(3)(c) Crimes Act 1900 (NSW) (The Act) requires the Crown to prove beyond reasonable doubt that there were “no reasonable grounds” for the accused to believe that the other person consented.
If the accused person genuinely, though wrongly, believed the complainant was consenting then the prosecution has failed to prove that, at the time of the act, the accused did not genuinely believe that the complainant was consenting.
In such a case a verdict of “not guilty” must be returned.
However, if an alleged offender is deemed to know there is no consent if he or she engages in sexual activity, or incites anyone to do so, in circumstances where he or she:
- knows the alleged victim does not consent;
- is reckless as to whether the alleged victim consents; or
- has no reasonable grounds to believe the alleged victim consents.
In deciding whether there is consent, the court must also consider any steps taken by the alleged offender to ascertain whether there is consent.
CHARGED WITH SEXUAL TOUCHING?
If you are accused of sexual touching and require the assistance of lawyers, National Criminal Lawyers only employ the best Criminal Lawyers Sydney has to offer.
Remember you may be factually guilty of an offence but not legally guilty of an offence. Call one of our expert lawyers today on 02 9893 1889