The Dalai Lama has sent the internet into overdrive in the past few days, with his bizarre interaction with a young boy, who he asked to lick his tongue.
A lot has been said about the spiritual leader's ensuing apology which, it should be noted, has only just been issued – deemed necessary by his advisers because as the video has attracted the ire shocked and appalled viewers around the globe.
Culturally acceptable?
However, many have labelled the criticism as misplaced and borne from ignorance, pointing to the fact that sticking out one's tongue can be seen as a greeting and sign of respect in Tibetan culture, and has no sexual overtones.
They note that different cultures across the globe have different customs, and even go so far as to say that those who see the Dalai Lama's conduct as sexual are not only culturally insensitive, but may themselves be of concern by interpreting it in a sexual manner.
Suck my tongue
And so the debate persists – with what seems to be the overwhelming majority of Western commentators finding it inexcusable for a man who has been exposed to culture around the globe, and who wields great power and influence, to ask a young boy to suck his tongue in a room full of people and cameras.
These people have gone so far as to say that anyone who fails to speak against such conduct tacitly enables child sexual abuse and is complicit to it.
They point out that when confronted with something they do not want to do by a person in authority, they will comply despite how it may affect them; and this is an unacceptable position to put a child in.
The conduct
The video in question shows the 87-year old spiritual leader inviting a boy who wanted to hug him, to come up to the platform where he is seated. Motioning to his cheek, he is heard saying "first here", after which the child kisses him and gibes him a hug.
After this interaction, even as the boy seems to pull away, the Dalai Lama doesn't let go. He keeps hold of him, saying "I think here also" and then plants a kiss on his lips, before saying "and suck my tongue."
As many commentators have quipped: "If this was the Pope, there would be outrage."
That seems obvious, particularly because the Catholic Church is currently battling a relentless wave of global allegations and lawsuits from people who have been sexually abused by priests and church figureheads.
Abuse of power
But further, if this was any religious leader, a head of state, a politician, a person in authority, there most definitely should be collective rage and disapproval.
The fact that this horrendous incident occurred in a public setting and not behind closed doors does not stop it from being on the spectrum of what is considered child sexual abuse in many countries.
Child sexual abuse is not always violent and aggressive, many perpetrators are actually adored by their victims who in some cases don't know that a physically intimate relationship might be inappropriate or illegal until much later in their lives.
This act by the Dalai Lama is also a blatant abuse of power, and it could be argued that the public setting and media cameras would have amplified the pressure on the young child to participate without question or causing a fuss.
The Dalai Lama's office's reference to the incident as 'teasing, in an innocent and playful way,' is also horrific.
Kids need to know this is not acceptable behaviour
Failure to acknowledge that this act, if it did not specifically cross the line of what is considered 'the law', then it was definitely borderline, is a failure to both protect our children, and to support them to stand up when they're uncomfortable with physical interaction of any nature – whether it be a cuddle, or a kiss, or sucking a tongue.
Australian organisation Bravehearts which has a comprehensive education for young children, teaching them about 'appropriate' touching, and personal safety teaches young children that their mouth, and chest, as well as the area between their legs and their bottoms are private parts that 'belong to them' and they can so no to anyone who wants to touch these areas.
The offence of sexual touching in New South Wales
So, what if the Dalai Lama's conduct had occurred in our state?
In that regard, sexual touching is an offence under section 61KC of the Crimes Act 1900 (NSW)('the Act') which attracts a maximum penalty of five years' imprisonment.
The section states that a person is guilty of sexual touching if he or she, without the consent of the alleged victim and knowing there is no consent, intentionally:
- sexually touches the alleged victim, or
- incites the alleged victim to sexually touch the alleged offender, or
- incites a third person to sexually touch the alleged victim, or
- incites the alleged victim to sexually touch a third person.
What is sexual touching?
Section 61HB of the Act defines 'sexual touching' touching another person with any part of the body or with anything else, or through anything, including anything worn by either person, in circumstances where a reasonable person would consider the touching to be sexual.
The section provides that the matters to be taken into account when deciding if an act is sexual include whether:
- the area of the body touched or doing the touching is the person's genital area, anal area or – in the case of a female person, or a transgender or intersex person identifying as female – the person's breasts, or
- the alleged offender's actions are for sexual arousal or sexual gratification, or
- any other aspect of the touching, or the circumstances surrounding the touching, make it sexual.
Touching is not sexual if done for genuine medical or hygienic purposes.
Aggravated sexual touching
Section 61KD of the Act prescribes a maximum penalty of seven years in prison where sexual touching occurs in circumstances of aggravation; in other words, where:
- the alleged offender is with another person or persons, or
- the alleged victim is (whether generally or at the time of the incident) under the alleged offender's authority, or
- the alleged victim has a serious physical disability, or
- the alleged victim has a cognitive impairment.
Sexually touching a person aged between 16 and 18
The age of consent in NSW is generally 16 years, which means a person under that age cannot legally consent to sexual activity.
The corollary is that those who are at least 16 years of age can generally consent.
An exception to that general rule applies to persons who are aged at least 16 years but less than 18 years.
Section 73A of the Act criminalises any act of sexually touching a person of that age where a relationship of 'special care' exists.
Such a relationship arises where the alleged offender:
- is the alleged victim's parent, grandparent, step-parent, guardian or authorised carer, or the de facto partner of such a person, or
- is a member of the teaching staff at the alleged victim's school, or
- has an established personal relationship with the alleged victim in connection with the provision of religious, sporting, musical or other instruction, or
- is the alleged victim's a custodial officer, or
- is the alleged victim's health professional.
The maximum penalty is four years' imprisonment where the alleged victim is at least 16 but less than 17, or two years where at least 17.
An exception to the offence is where the two are married.
What is consent?
Section 61HI(1) of the Crimes Act 1900 (NSW) sets out that a person consents to sexual activity if he or she "freely and voluntarily agrees" to the activity.
The subsections that follow attempt to put that broad and potentially ambiguous definition into some practical context, making clear that:
- Consent can be withdrawn by words or conduct at any time,
- Sexual activity that occurs after the withdrawal of consent is deemed to be without consent,
- Consent is not established merely because a person does not offer physical or verbal resistance,
- Consent to one form of sexual activity is not taken as amounting to consent to another. In that regard, the Act expressly states that consent sexual activity with a condom does not amount to consent to such activity without one, and
- Consent to sexual activity on one occasion is not taken as amounting to consent on another.
Circumstances where consent cannot exist
Section 61HJ(1) makes clear that sexual consent does not exist if a person:
- Does not say or do anything to communicate consent (which is sometimes referred as the requirement to obtain affirmative consent),
- Does not have the capacity to consent (due, for example, to a cognitive impairment that requires supervision or social habilitation in connection with daily life activities),
- Is so affected by alcohol or another drug/s as to be incapable of consenting,
- Is unconscious or asleep,
- Participates because of force, fear of force or harm of any kind to him or her, another person, an animal or property, regardless of whether the feared force or conduct actually occurred, or was a single act or an ongoing pattern of conduct,
- Participates because of coercion, blackmail or intimidation regardless of when it occurred or whether it was a single act or an ongoing pattern of conduct,
- Participates because he or she, or another person, is unlawfully detained,
- Participates because he or she is overborne by the abuse of a relationship of authority, trust or dependence,
- Participates because of a mistaken belief about the nature or purpose of the sexual activity, including whether it is for health, hygienic or cosmetic purposes,
- Participates because of a mistaken belief about the identity of the other person or that they are married,
- Participates because of a fraudulent inducement, which is not a misrepresentation about the other person's income, wealth or feelings.
The section expressly states that these grounds are not exhaustive.
Knowledge about consent
Section 61HK sets out the circumstances where a person is taken to know the person with whom they are engaging in sexual activity does not consent.
Subsection 61HK(1) stipulates that a person is taken to know the other person does not consent to the sexual activity if:
- The person actually knows the other person does not consent,
- The person is reckless as to whether the other person does not consent.
In that regard, a person is 'reckless' if he or she realised at the time that consent may possibly be absent but went ahead with the sexual activity regardless; or
- Any belief the person has that the other person consents is not reasonable in the circumstances.
In that regard, subsection 61HK(2) states that sexual activity is not reasonable if the person did not, within a reasonable time before or at the time of it, say or do anything to find out if the other person consents.
Subsection 61HK(3) provides that the requirement of reasonableness does not apply if the defendant shows that he or she had a cognitive impairment or mental health impairment at the time of the conduct, and the impairment was a substantial cause of him or her not saying or doing anything at the time,
Subsection 61HK(4) states that the onus rests on the defendant to prove, on the balance of probabilities, that the belief as to consent was reasonable.
The section forms part of the legal requirement to obtain affirmative consent.
Subsection 61HK(5) states that for the purpose of making a finding regarding consent, the 'fact finder' (in other words, the jury in a jury trial, the judge in a judge-alone trial or the magistrate in a Local Court hearing):
- Must consider all of the circumstances of the case including what, if anything, the defendant said or did, but
- Must not consider any self-induced intoxication of the defendant.
A question of fact
Applying all of the above to the facts at hand, the question of whether the Dalai Lama's conduct has sexual overtones would be a matter for the fact finder to determine, and it is important to bear in mind that this sexual aspect would need to be proved by the prosecution beyond a reasonable doubt.
All matters considered, and if we accept that his conduct is acceptable within his culture (which may be seen as a matter of debate), there is an argument the prosecution could find it difficult to establish to the requisite standard that his touching of the child was sexual in manner; although, again, this is a matter for the fact finder after being presented with all of the admissible evidence.
Charged with sexual touching?
If you are accused of sexual touching and require the assistance of lawyers who are vastly experienced and have an outstanding track record of defending sexual cases, call Sydney Criminal Lawyers® 24/7 on (02) 9261 8881.
If you are going to court, we offer a free first conference at one of our many office locations across Sydney, or in Newcastle or Wollongong.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
