Sexual Touching
The charge of ‘Sexual Touching’ (formerly indecent assault) is commonly addressed and heard before a Magistrate in the Local Court. However, in cases where the circumstances surrounding the assault are more severe or aggravated, the Director of Public Prosecutions (DPP) may choose to escalate the matter to the District Court, where the maximum penalty is 5 years of imprisonment.
Sexual Touching vs Sexual Act
Sexual touching is a physical action, whereas a sexual act does not necessarily require a physical component. In the case of a sexual act, it may involve one person urging or compelling another to engage in self-touching for their own satisfaction, without any actual physical contact occurring.
Sexual touching typically entails inappropriate contact of a sexual nature with a person’s breasts, buttocks, or genitals. Most sexual acts do not result in physical injuries or visible marks and can occur without any witnesses present.
Prove the guilty
In order to establish the accused’s guilt, the prosecution must demonstrate, beyond a reasonable doubt, the presence of each of the following four elements that constitute the offense:
- The accused deliberately made physical contact with the complainant.
- The nature of the contact was of a sexual nature.
- The complainant did not consent to being touched in that manner.
- The accused was aware that the complainant did not give consent.
The assessment applied is whether a reasonable person would perceive the touching or act as being sexual. This “reasonable person” is a hypothetical standard used by the Courts to address such matters, representing an individual with an ordinary level of reason, prudence, care, and foresight.
Penalties for Sexual Touching Offences
Sexual Touching (formerly known as Indecent Assault) – Any person who assaults another person over the age of 16 and, at the time of, or immediately before or after, the assault, engages in an act of Sexual Touching (indecency) on or in the presence of the other person is subject to a maximum penalty of 2 years imprisonment in the Local Court and 5 years imprisonment in the District Court.
Aggravated Sexual Touching – Any person who assaults another person in aggravated circumstances, and, at the time of, or immediately before or after, the assault, engages in an act of Sexual Touching (indecency) on or in the presence of the other person is liable to a maximum penalty of 7 years imprisonment.
Sexual touching child between 10-16 – If the other person is between the ages of 10 and 16 years, any person who assaults another person, and, at the time of, or immediately before or after, the assault, engages in an act of Sexual Touching (indecency) on or in the presence of the other person, is subject to a maximum penalty of 10 years imprisonment.
Sexual touching child under 10 – If the other person is under the age of 10 years, any person who assaults another person, and, at the time of, or immediately before or after, the assault, engages in an act of Sexual Touching (indecency) on or in the presence of the other person, is liable to a maximum penalty of 16 years’ imprisonment.
Penalty for sexual Act offences
Sexual act child under 10 – Engaging in a Sexual Act (the act of indecency) with or towards a person under the age of 10 years, or inciting a person under that age to commit a Sexual Act with or towards that person or another, carries a maximum penalty of 7 years imprisonment.
Sexual act – child between 10 and 16 – Engaging in a Sexual Act (the act of indecency) with or towards a person under the age of 16 years, or inciting a person under that age to commit a Sexual Act with or towards that person or another, carries a maximum penalty of 2 years imprisonment.
Aggravated Sexual Act child between 10 and 16 – Committing a Sexual Act (the act of indecency) with or towards a person under the age of 16 years, or inciting a person under that age to commit a Sexual Act with or towards that person or another, under aggravated circumstances, carries a maximum penalty of 5 years imprisonment.
Sexual act for production of child abuse material child under 16 – A person who engages in a Sexual Act (act of indecency) with or towards a person under the age of 16 years, or incites a person under that age to commit a Sexual Act with or towards that person or another, and is aware that the act is being recorded for the purpose of producing child abuse material, is liable to imprisonment for 10 years.
Aggravating circumstances
The nature of the aggravating circumstances will be contingent on the particular offense. The prosecution is only required to establish one aggravating circumstance to demonstrate that the offense was indeed aggravated.
aggravating circumstances may include:
- The perpetrator intentionally or recklessly caused physical harm.
- The perpetrator employed a weapon to threaten the victim or others present.
- The perpetrator was in the company of others during the commission of the offense.
- The victim is below 16 years of age.
- The victim is under the authority or control of the offender.
- The victim suffers from a severe physical disability.
- The victim has a cognitive impairment.
- The offender unlawfully enters a building with the intent of committing the offense.
- The offender unlawfully restrains the victim’s freedom before or after the offense takes place.
Speak to CFS Legal dedicated lawyers in confidence about your offenses. Book a FREE consultation, email: info@cfslegal.com.au