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  • Writer's pictureGeoff Harrison

Sexual Touching

Updated: Sep 18, 2023


Sexual Touching

Published by Geoff Harrison | 6 July 2023


The offence of Sexual Touching under s61KC of the Crimes Act 1900 carries a maximum penalty of 5 years imprisonment or 7 imprisonment for Aggravated Sexual Touching. The predecessor for this offence was 'indecent assault' - the current legislation commenced on 1 December 2018. The elements that need to be proven by the prosecution for Sexual Touching are:


1. the accused intentionally touched the complainant;


2. the touching was sexual;


3. the complainant did not consent to being touched in that way; and


4. the accused knew the complainant did not consent.




Cases:


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Legislation:



61KC SEXUAL TOUCHING


Any person (the "accused person" ) who without the consent of another person (the "complainant" ) and knowing that the complainant does not consent intentionally--


(a) sexually touches the complainant, or

(b) incites the complainant to sexually touch the accused person, or

(c) incites a third person to sexually touch the complainant, or

(d) incites the complainant to sexually touch a third person,

is guilty of an offence.

Maximum penalty--Imprisonment for 5 years.


61KD AGGRAVATED SEXUAL TOUCHING


(1) Any person (the

"accused person" ) who without the consent of another person (the "complainant" ) and knowing that the complainant does not consent and in circumstances of aggravation intentionally--


(a) sexually touches the complainant, or

(b) incites the complainant to sexually touch the accused person, or

(c) incites a third person to sexually touch the complainant, or

(d) incites the complainant to sexually touch a third person,

is guilty of an offence.

Maximum penalty--Imprisonment for 7 years.


(2) In this section,

"circumstances of aggravation" means circumstances in which--

(a) the accused person is in the company of another person or persons, or

(b) the complainant is (whether generally or at the time of the commission of the offence) under the authority of the accused person, or

(c) the complainant has a serious physical disability, or

(d) the complainant has a cognitive impairment.


61HB MEANING OF "SEXUAL TOUCHING"


(1) For the purposes of this Division,

"sexual touching" means a person touching another person--

(a) with any part of the body or with anything else, or

(b) through anything, including anything worn by the person doing the touching or by the person being touched,

in circumstances where a reasonable person would consider the touching to be sexual.


(1A) The continuation of sexual touching as defined in subsection (1) is also "sexual touching" for the purposes of this Division.


(2) The matters to be taken into account in deciding whether a reasonable person would consider touching to be sexual include--

(a) whether the area of the body touched or doing the touching is the person's genital area, anal area or breasts--

(i) whether or not the breasts are sexually developed, and

(ii) regardless of the person's gender or sex, or

(b) whether the person doing the touching does so for the purpose of obtaining sexual arousal or sexual gratification, or

(c) whether any other aspect of the touching (including the circumstances in which it is done) makes it sexual.


(3) Touching carried out solely for proper medical or hygienic purposes is not "sexual touching" for the purposes of this Division.

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