Sexual Touching

What is
Sexual Touching?

In New South Wales, sexual touching is a criminal offence under Section 61KC of the Crimes Act 1900 (NSW). It involves intentional touching of another person in a sexual manner, without their consent, and knowing or being reckless as to whether they consented.

Touching is the physical contact made by the accused with the victim, or by the victim with themselves at the request or direction of the accused. It can include direct or indirect contact, including through clothing. Touching is considered sexual if:

  • A reasonable person would consider it sexual in context, and

  • It involves contact with the genitalia, buttocks, or breasts, or

  • Is done for sexual arousal or gratification.

Consent means the person freely and voluntarily agrees to the sexual activity at the time it occurs. Consent must be ongoing and can be withdrawn at any time. Simply put, past consent or implied willingness is not enough—there must be clear and current agreement. Consent is legally invalid if it is obtained through:

  • Force or fear of harm

  • Threats, intimidation, or coercion

  • Misrepresentation or deceit

  • The person is under 16 years of age, asleep, unconscious, intoxicated, or mentally impaired to the extent that they cannot understand the nature of the act.

Consent is not presumed—and silence, lack of resistance, or failure to say “no” does not mean yes.

Aggravated
Sexual Touching

Aggravated sexual touching is a more serious form of the offence of sexual touching and is defined under Section 61KD of the Crimes Act 1900 (NSW). It occurs when sexual touching is carried out in circumstances that make the offence more serious due to aggravating factors, such as the victim's age, the offender’s relationship to the victim, or the manner in which the offence was committed.

A person is guilty of aggravated sexual touching if they commit sexual touching and one or more of the following aggravating circumstances apply:

  1. Victim is under the age of 16

    • Even if the victim consents or appears to consent, the law considers them incapable of giving valid consent.

  2. Offender is in a position of authority

    • This includes situations where the offender is a teacher, coach, employer, guardian, or any other role involving power or trust over the victim.

  3. Offence is committed ‘in company’

    • The sexual touching is committed with another person present who is aiding, encouraging, or involved in the act.

  4. Victim has a cognitive impairment

    • If the victim is mentally impaired and unable to understand or consent to the act.

The Penalties of
Sexual Touching

Both sexual touching and aggravated sexual touching are serious criminal offences. The penalties reflect the level of harm, consent violations, and any aggravating circumstances involved in the offence. The penalties involved include:

Sexual Touching – Section 61KC

Maximum Penalty:

  • 5 years imprisonment

Aggravated Sexual Touching – Section 61KD

Maximum Penalty:

  • 14 years imprisonment

In addition to imprisonment, a conviction for sexual touching or aggravated sexual touching in NSW can lead to significant long-term legal and personal consequences. One of the serious outcomes is the potential registration as a sex offender, which imposes ongoing reporting obligations and monitoring by authorities. Convicted individuals may also face permanent restrictions on working with children or vulnerable persons, effectively disqualifying them from many professions and volunteer roles. Beyond these legal penalties, there are often profound impacts on travel, employment, and immigration, with many countries refusing entry to registered offenders and employers requiring clean background checks. Perhaps most damaging is the lasting reputation associated with a sex offence conviction, which can affect relationships, housing, community standing, and overall quality of life.

The Possible
Defence Strategies

Defending a sexual touching charge requires a careful and strategic legal approach, as this offence involves allegations of non-consensual sexual contact, which carry serious legal, reputational, and personal consequences. The goal of any defence is to challenge the prosecution’s case, raise reasonable doubt, or demonstrate that the accused did not have the required intent. The possible defence strategies include:

Denial or Factual Dispute

  • The accused denies that any sexual touching occurred.

  • The defence may challenge the credibility or accuracy of the complainant’s version of events, or highlight inconsistencies, contradictions, or lack of evidence.

  • May include an alibi, surveillance footage, text messages, or witness accounts.

Mistaken Identity

  • The accused is wrongly identified as the perpetrator.

  • This defence is common when the complainant did not know the accused personally or where identification is based on limited or unreliable evidence.

Consent

  • The accused argues that the complainant freely and voluntarily consented to the physical contact at the time.

Honest and Reasonable Mistake of Consent

  • The accused believed the complainant consented, and that belief was both honest and reasonable in the circumstances.

  • This requires the court to consider what steps the accused took to ensure the person was consenting.

  • This defence will fail if the belief was unreasonable or based on assumptions, not clear communication.

No Sexual Intent

  • In some cases, the defence may argue that while physical contact occurred, it was not sexual in nature.

  • For example, accidental touching or gestures misinterpreted as sexual.

  • The court must consider whether a reasonable person would regard the contact as sexual.

Mental Illness Defence

  • If the accused was suffering from a mental illness or cognitive impairment at the time of the alleged offence, and did not understand the nature or wrongness of their actions, they may be found not guilty by reason of mental illness.

  • The person is diverted to a mental health facility rather than prison.

Challenge to Police Procedure or Evidence

  • The defence may challenge the admissibility of evidence (e.g. police interviews, statements, CCTV) if it was obtained unlawfully or improperly.

  • For example, if the accused was denied legal advice, or coerced into making admissions.

When facing a charge as serious as a sexual touching, having the right legal team is critical. At Sydney Defenders, we recognise the life-altering consequences these allegations can have—not only on an individual’s freedom, but also on their reputation, employment, and future. Our firm provides access to an exclusive network of seasoned criminal defence barristers, regularly briefed in complex and sensitive matters involving serious indictable offences. Backed by a dedicated and highly skilled legal team, we work strategically to scrutinise the prosecution’s evidence, identify flaws or inconsistencies, and develop a compelling, evidence-based defence. We are committed to delivering realistic and practical legal advice, guiding our clients through each stage to put them in the best possible position before the court.