Australia: The criminal offence of sexual touching in New South Wales

Radio shock jock Alan Jones is facing multiple allegations that he sexually touched a number of young men without their consent .

Mr Jones is no stranger to controversy, having been instrumental in inciting the Cronulla riots of 2005, was ordered to pay $10,000 for racist comments which referred to Lebanese men as 'subhuman', 'vermin', 'mongrels' and 'idiots', was ordered to pay $3 million dollars after launching a 'vicious', 'spiteful' and 'untrue' attack on an Australian family and regularly launching into unhinged, bigoted, unfounded, illogical and, at times, nonsensical populist tirades to garner ratings.

Now, according to reports in the Sydney Morning Herald, several men have come forward to assert that the man who puts himself out to be the oracle of truth and morality groped their genital areas without consent, with one man claiming he was non-consensually kissed by the broadcaster.

The following outlines how these actions would be construed by New South Wales criminal law, with a focus on the criminal offence of sexual touching.

Changes to the offence of indecent assault in NSW

Mr Jones' alleged actions have been described by the media as ' indecent assault'.

This is an offence that applies to conduct that is alleged to have occurred before December 2018. The offence was then repealed and replaced with that of sexual touching.

And while the reports appear to refer to conduct captured by the previous offence, and which may therefore be prosecuted as indecent assault, this article focuses on the current offence of sexual touching.

The offence of sexual touching in NSW

Sexual touching is an offence under section 61KC of the Crimes Act 1900 which carries 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 counts as 'sexual touching'?

Section 61HB of the Act defines ' sexual touching' as:

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.

What is required for sexual consent?

Section 61HI(1) of the Act 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.

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 of non-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. This section states that a person is taken to know the other person does not consent to the sexual activity if:

1. The person actually knows the other person does not consent;
2. The person is reckless as to whether the other person does not consent; or
3. Any belief the person has that the other person consents is not reasonable in the circumstances.

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.

A belief that sexual activity activity is consensual 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) states that this requirement does not apply 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,

The offence of aggravated sexual touching in NSW

An aggravated version of the sexual touching offence exists under section 61KD of the Act and carries a maximum penalty of seven years imprisonment.

Circumstances of aggravation apply if, at the time of offending:

• 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.

Defences to sexual touching in NSW

The prosecution must prove each of the 'elements' listed above beyond a reasonable doubt in order to convicted of an offence of sexual touching. In addition to this, there a number of legal defences that may apply.

Section 61HB(3) of the Act makes clear that touching is not sexual if it occurs solely for genuine medical or hygienic purposes. It is a statutory defence that applies specifically to sexual touching offences.

General legal defences to criminal offences also apply to the charge, including duress, necessity and self-defence.

Where you are able to raise evidence of a general legal defence, the onus then shifts to the prosecution to prove beyond a reasonable doubt that the defence does not apply to the circumstances of your case.

If the prosecution is unable to do so, you are entitled to an acquittal; in other words, a verdict of not guilty.

Charged with sexual touching?

If you have been accused of sexual touching and require the assistance of lawyers who are vastly experienced and have an outstanding track record of defending these cases, call Sydney Criminal Lawyers® 24/7 on (02) 9261 8881 to arrange a free first conference.

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.