Criminal law
Sexual touching and sexual act charges in NSW
These are the offences that replaced indecent assault and act of indecency in December 2018. They cover a very wide range of conduct, from a single unwanted contact at a pub to sustained offending, and the sentencing range is correspondingly wide. A great many of them are finalised in the Local Court, and the outcome usually turns on whether the touching was sexual, whether there was consent, and how well the matter was prepared.
Alicia Catron 0407 171 626 or Michelle Simmons 0407 534 594. Our lawyers include former prosecutors. We appear in Local Courts across New South Wales and in the District Court.
Sexual touching
Sexual touching is touching another person without their consent, knowing they do not consent, where a reasonable person would consider the touching sexual. It also covers inciting another person to touch you, and inciting a person to touch a third person.
Touching includes touching with any part of the body, with anything else, and through clothing. Whether it is sexual is decided by reference to the area of the body touched, whether the person was seeking sexual arousal or gratification, and any other aspect of the circumstances.
| Offence | Maximum penalty |
|---|---|
| Sexual touching | 5 years |
| Aggravated sexual touching | 7 years |
The aggravating circumstances are being in company, the complainant being under your authority, and the complainant having a serious physical disability or a cognitive impairment.
Sexual act
A sexual act is conduct carried out with or towards another person, other than touching, that a reasonable person would consider sexual, done without consent and knowing there is no consent. It captures conduct that does not involve any physical contact at all.
| Offence | Maximum penalty |
|---|---|
| Sexual act | 18 months |
| Aggravated sexual act | 3 years |
The same aggravating circumstances apply. Both offences are dealt with in the Local Court.
Consent applies here too
The consent provisions rewritten in June 2022 apply to sexual touching and sexual act offences in exactly the same way they apply to sexual assault. That means consent is free and voluntary agreement at the time, it is specific to the activity, silence is not consent, and a belief in consent is not reasonable unless you said or did something within a reasonable time to find out.
This is frequently overlooked in the lower offences, where the conduct is brief and the circumstances are social. It should not be. The prosecution has to prove the same knowledge element here as it does in a sexual assault trial. More on the law of consent.
For conduct alleged to have occurred before 1 June 2022, the earlier law applies. For conduct before December 2018, the charges are the old indecent assault and act of indecency offences, which have their own elements.
Defences and issues
The touching was not sexual
The most commonly available argument and the one the legislation itself invites, because whether conduct is sexual is judged objectively by reference to the part of the body involved, the purpose, and the circumstances. Crowded venues, public transport, sport and physical work all generate charges over contact that was not sexual at all.
Incidental or accidental contact
Touching that was not intentional is not this offence. Where the allegation arises in a confined space or a crowd, this is a real issue rather than a technicality.
Consent
The complainant agreed at the time. As above, the current law asks what was communicated and what you did to find out.
Medical, hygienic or care purposes
Contact carried out for a genuine medical, hygienic or caregiving purpose. This arises in health, disability and aged care settings, and it needs to be established with evidence about practice and procedure rather than assertion.
It was not you
Identification in a licensed venue, late at night, with poor lighting and CCTV of limited quality. These cases are frequently built on a description rather than a recognition.
Duress
You acted under a threat of serious harm.
Where a mental health impairment or cognitive impairment is involved and the matter is in the Local Court, it may be able to be dealt with by way of a treatment plan rather than a conviction. That requires expert evidence obtained before the day of court.
What a conviction carries
- Registration. Where the complainant was a child, sexual touching is a registrable offence and the reporting obligations follow automatically on a conviction. More on registration
- Working with Children Check. A charge can trigger an interim bar before any finding is made
- Professional registration and employment. Regulatory action commonly runs in parallel with the criminal matter, on a different standard of proof
- Visas and travel. Character requirements apply and disclosure is required
- An apprehended violence order is usually sought alongside the charge and is often the more immediately disruptive of the two. More on defending an AVO
A non-conviction outcome is available at the lower end of this area and is worth pursuing properly, because it is the conviction rather than the penalty that produces most of the consequences above.
Sentencing options in NSW
Get advice before pleading guilty to anything. The court can impose any of the following, and a well-prepared sentencing is what produces the best available outcome.
Dismissal without conviction
No conviction recorded and no further penalty. The matter is finalised as you leave court.
Conditional release order
A bond, available with or without a conviction, supervised or unsupervised. The standard conditions are to commit no further offence and to appear if called on, and further conditions can include rehabilitation, curfews and non-association or place restriction orders.
Conviction with no other penalty
A conviction is recorded but nothing further is imposed.
Fine
Can be imposed alone or with a bond, and is a conviction. Usually payable within 28 days, though the registry can extend the time or arrange a plan.
Community correction order
More serious than a conditional release order, for up to three years, supervised or unsupervised, with conditions that can include community service, curfews, abstinence and rehabilitation.
Intensive correction order
A sentence of imprisonment served in the community under strict supervision. It is unavailable for a range of sexual offences, so whether it is open in your matter needs to be checked rather than assumed.
A word on written pleas of guilty. Police sometimes hand you a form allowing you to plead guilty in writing without attending. It looks convenient and it is a serious mistake in this area. On a written plea the magistrate has only the police fact sheet and your record, and knows nothing about you or anything mitigating. Where a conviction triggers registration, an employment consequence or an immigration consequence, pleading by post gives all of that away without a word being said on your behalf.
Common questions
This used to be called indecent assault. Is it the same offence?
It replaced it from 1 December 2018 and the penalties are broadly the same, but the elements are drafted differently. Which offence you are charged with depends on when the conduct is alleged to have occurred, and for older allegations the previous offences still apply.
It was a crowded bar and I brushed past someone.
Then the two live issues are whether the touching was intentional and whether a reasonable person would consider it sexual. The legislation requires the court to consider the part of the body involved, whether anyone was seeking arousal or gratification, and the circumstances. Incidental contact in a crowd is not this offence, and CCTV and the accounts of others matter.
Can I be charged over something that involved no contact?
Yes. A sexual act is conduct carried out with or towards a person, other than touching, that a reasonable person would consider sexual. It carries eighteen months, or three years in its aggravated form.
She did not object at the time.
The consent reforms that commenced in June 2022 apply to these offences too. Silence and the absence of objection are not consent, and a belief in consent is not reasonable unless you said or did something to find out. This is the point most often misunderstood in the lower offences.
Will I end up on the child protection register?
Only where the complainant was a child. Where they were, sexual touching is a registrable offence and the obligations follow automatically on conviction. That consequence is a reason to look very carefully at whether a non-conviction outcome is available.
My employer has stood me down and I have not been convicted of anything.
That is common. Employment and regulatory consequences attach on charge rather than on conviction, and a Working with Children Check bar can be imposed on an interim basis. These processes run on their own timetable and on a different standard of proof, and how you engage with them affects the criminal matter.
Can this be dealt with without a conviction?
At the lower end of this area, yes, and it is worth pursuing properly. It is not automatic and it depends heavily on what is put before the court about you, which takes preparation.
What should I bring to a first appointment?
The court attendance notice, the police fact sheet, any bail conditions, any AVO, and anything your employer or a regulator has sent you. If there are messages or CCTV, tell us before it is lost. If you have none of it, come anyway.
The conviction does more damage than the penalty
These matters carry registration, employment and licensing consequences that outlast any fine or bond, and a non-conviction outcome is available at the lower end. Speak to us before your first court date.
Alicia Catron 0407 171 626 or Michelle Simmons 0407 534 594. Suite 3.13, 33 Lexington Drive, Bella Vista NSW 2153. Courts we appear in.