Sexual Touching Charges in NSW: The Law Explained

Sexual touching is one of the more commonly charged sexual offences in New South Wales, yet it is also one of the least understood. It covers a broader range of conduct than many people expect, does not require any element of penetration, and can arise from a single, brief act. This article explains what the offence involves, how it differs from the older law it replaced, the penalties that apply, and the defences available.

From “Indecent Assault” to “Sexual Touching”

Until 1 December 2018, this kind of conduct was prosecuted as indecent assault under the former section 61L of the Crimes Act 1900 (NSW). Following the Royal Commission into Institutional Responses to Child Sexual Abuse, the Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 repealed indecent assault and replaced it with the offence of sexual touching under section 61KC.

The change was more than a rename. Indecent assault required the prosecution to prove the conduct was contrary to the ordinary standards of respectable people in the community and had a sexual connotation—a subjective, community-standards test. Sexual touching instead asks a more direct question: would a reasonable person consider the touching to be sexual? This generally makes the offence easier to prove and captures a wider range of conduct than the old law did. Conduct alleged to have occurred before 1 December 2018 is still prosecuted under the old indecent assault provisions, which continue to apply for historic matters.

What Counts as Sexual Touching

Section 61HB of the Crimes Act defines sexual touching as touching another person—with any part of the body, or with an object, or through clothing—in circumstances where a reasonable person would consider the touching to be sexual. In deciding this, the law directs consideration of factors including whether the area touched was the genital area, anal area or breasts (regardless of whether the breasts are sexually developed), whether the person touching was seeking sexual arousal or gratification, and any other aspect of the touching that makes it sexual. Touching for a genuine hygiene or medical purpose is expressly excluded.

Under section 61KC, the offence itself can be committed in one of several ways: by the accused sexually touching the complainant, by inciting the complainant to touch the accused, or by inciting the complainant to touch, or be touched by, a third person. In each case, the prosecution must prove beyond reasonable doubt that the touching occurred and that the accused knew the other person did not consent. The maximum penalty for sexual touching is five years’ imprisonment.

Aggravated Sexual Touching

A more serious version of the offence, aggravated sexual touching, is contained in section 61KD and carries a maximum penalty of seven years’ imprisonment. It applies where the same elements as the basic offence are proved, together with a circumstance of aggravation—such as the accused being in the company of another person, the complainant being under the accused’s authority at the time, or the complainant having a serious physical disability or cognitive impairment.

Offences Involving Children

Where the complainant is a child, sexual touching is prosecuted under separate, standalone provisions rather than section 61KC. Section 66DA applies where the child is under 10 and carries a maximum penalty of 16 years’ imprisonment. Section 66DB applies where the child is between 10 and 16 and carries a maximum of 10 years. A further offence under section 73A applies to the touching of a 16 or 17-year-old who is in the offender’s special care—such as a parent, guardian, teacher, health professional or someone in an established personal relationship with the child—carrying a maximum of four years where the child was 16, or two years where the child was 17.

Consent and the Affirmative Model

Consent for sexual touching offences is governed by the same affirmative consent framework introduced across NSW sexual offences from 1 June 2022, which we have discussed in our article on affirmative consent laws in NSW. Under section 61HI, consent means a person freely and voluntarily agrees to the sexual activity, and that agreement must be communicated by words or conduct. A person accused of sexual touching cannot rely on an honest but unreasonable belief that the other person was consenting—the belief must be reasonable in the circumstances, and the accused generally must have said or done something to find out.

Defending a Sexual Touching Charge

The most common way to defend this charge is to argue that the prosecution cannot prove one or more of the essential elements beyond reasonable doubt—for example, that the touching occurred as alleged, that it was sexual in nature, or that the accused knew the complainant did not consent.

Where a legal defence is raised on the evidence, the burden shifts to the prosecution to disprove it beyond reasonable doubt. The most commonly raised defences in this context are:

• Duress—where a threat against the accused or a loved one was operating on their mind throughout the conduct, and was serious enough to justify what they did.
• Mental or cognitive impairment—under section 28 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), a person is not criminally responsible for conduct that occurred while they were suffering a mental or cognitive impairment.

Historic Allegations

There is no statutory time limit that determines when a sexual offence becomes “historic” in NSW—the term is simply used for allegations reported some time after the alleged conduct occurred, whether that is several years or several decades. Where the alleged conduct occurred before 1 December 2018, it continues to be prosecuted under the old indecent assault provisions rather than sexual touching, with the penalties that applied at the time.

How NS Criminal Lawyers Can Help

A sexual touching charge, whatever the circumstances, carries serious consequences and should never be dealt with without experienced legal advice. Our criminal lawyers can advise you confidentially on the strength of the evidence against you, the defences that may be available, and represent you at every stage, including bail applications. Contact NS Criminal Lawyers for a confidential discussion. We are available 24/7.

This article provides general information only and is not legal advice. The law referred to is current in New South Wales as at the date of publication. For advice about your circumstances, please contact a qualified criminal defence lawyer.