In New South Wales (NSW), sexual touching is a serious criminal offence governed by Section 61KC of the Crimes Act 1900. This law is designed to protect individuals from unwanted and unlawful sexual contact and to reflect contemporary standards around consent and bodily autonomy.

What Is Sexual Touching?

Sexual touching refers to intentional physical contact that a reasonable person would consider sexual in nature. It includes touching another person’s body or using one’s own body in a sexual way towards someone else, without their consent.

This offence also applies when a person encourages or incites another person, or a third party, to engage in such conduct.

Key Legal Points

Definition

• Physical contact is considered sexual by community standards.
• May involve the breasts, genitals, mouth, or other private areas.

Consent

• Consent must be freely given, and it can be withdrawn at any time.
• Consent is not valid if the person is:
  • Under the influence of drugs or alcohol
  • Asleep or unconscious
  • Threatened, coerced, or manipulated

Incitement

• Encouraging or directing another person to engage in sexual touching (including involving a third party) is also criminalised.

Penalties

The severity of the offence depends on various circumstances:

• General offence of sexual touching: Up to 5 years’ imprisonment
• Sexual touching of a child under 10 years old: Up to 16 years’ imprisonment

What Must Be Proven in Court?

To secure a conviction, the prosecution must establish:

• The accused intentionally touched the complainant.
• The touching was sexual in nature.
• The act occurred without the complainant’s consent.

What Constitutes Sexual Touching?

Examples of sexual touching include:

• Deliberate contact with another person’s genitals, breasts, groin, or mouth
• Using one’s own mouth or private parts to touch another person

Exemptions

Not all physical contact is unlawful. Sexual touching laws do not apply to legitimate physical contact made for:

• Medical examinations
• Hygienic care or assistance

Aggravating Circumstances

Penalties can increase when:

• The victim is a child
• The offender is in a position of authority or trust, such as a teacher, carer, or medical professional

About Post Author

Brian Walker

B.Acc., GradDipLegPrac, Juris Dr
Barrister & Accountant.
Former Criminal Defence Solicitor. Former Federal Prosecutor for the Commonwealth Director of Public Prosecutions prosecuting Commonwealth crimes relating to drugs and child exploitation. Former Australian Federal Police member litigating proceeds of crime matters. Former Australian Taxation Office employee investigating offshore tax evasion matters.

Post Created by Jesslyn Duong, paralegal.

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