Sexual Touching in NSW Explained

You have probably heard of offences like ‘rape’ (which is now coined as ‘sexual assault’) and ‘grooming’, but have you heard of ‘sexual touching’? Sexual touching is a relatively new offence that was inserted into the Crimes Act 1900 (NSW) at the end of 2018, and it replaced the offence of ‘indecent assault’. Given that sexual touching carries a maximum imprisonment of five years and is relatively easy to prove, you should be aware of its basic elements. This article will explain, with a real-life example, the elements that the Police will try to prove.

What constitutes sexual touching? (s 61HB)

Section 61HB of the Crimes Act 1900 (NSW) defines sexual touching as touching the alleged victim:

1. with any part of the body or with anything else, or
2. 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. Circumstances include touching the alleged victim’s genital area, anal area or breasts and where the touching was for sexual arousal or sexual gratification.

Like most criminal offences, there are physical elements and mental elements. For this offence, the alleged offender has to know that the alleged victim was not consenting to the sexual touching. Consent means that he or she freely and voluntarily agrees to that sexual activity. Knowledge comprises of three mental states:

1. the alleged offender has actual knowledge that the victim does not consent
2. the alleged offender is reckless as to whether the alleged victim consents; and
3. the alleged offender has an honest belief that alleged victim consented but has no reasonable grounds for that belief.

Case Law – R v Shanmugam

In a recent Disctrict Court case, R v Shanmugam (No.2) [2020] NSWDC 482, the physical elements and mental elements are set out clearly. The offence happened in early January 2019. After a belated work Christmas party, Shanmugam, the victim and a female workmate ended up at the victim’s home. They all slept in the same bed. Although the victim and Shanmugam had cuddled earlier in the night, there was no expectation by either of them at the time to have sexual relations. The victim woke and saw Shanmugam masturbating. He then rolled towards her and laid against her in the spooning position. He was still masturbating, with his hand against her night shorts while she was facing the wardrobe pretending to be asleep. After she brushed him off, she rolled onto her back to stop him from repeating what he had done. He then put his hands down the front of her pants and rubbed the exterior of her vagina with his hand. She brushed him away, rolled onto her side. She was in shock and reported the incident to the Police.

The conduct of laying against the victim, putting his hands down the front of her pants, and rubbing the exterior of her vagina with his hand satisfied the physical element of sexual touching. In terms of the mental element, the victim continually rolled onto her back, tried to ignore the accused, and tried to stop him. Here, a reasonable person would infer that the victim had not given consent. Shanmugam witnessed these reactions from the victim and continued to sexually touch the victim without her consent. Therefore, he was at least reckless as to whether the victim consented. Shanmugam was sentenced for 1 year and 3 months.

Conclusion

Sexual touching can be a serious offence depending on the circumstances, and the Police can generally satisfy the elements with little difficulty. Our lawyers have rich experience in this area so please contact us on 02 9283 8588 immediately if you need legal representation. We are committed to protecting your legal rights.

Disclaimer: This publication is general information only and does not purport to provide legal advice. We do not accept responsibility for any losses for reliance upon this publication.