Sexual touching

Crimes Act 1900 (NSW), ss 61KC, 61KD, 66DA and 66DB

Important note: The directions in ss 292–292E Criminal Procedure Act 1986 apply to proceedings for these offences which commence from 1 June 2022, regardless of when the offence was committed: Sch 2, Pt 42. See further [2-980] Directions — misconceptions about consent. The procedure for filing a Crown or Defence Readiness Hearing Case Management Form requires the parties to identify, amongst other matters, which directions under ss 292A–292E may be required at trial. It would be prudent to commence a discussion early in the trial concerning which of these directions, if any, might be required in a particular trial.

[5-1770] Introduction

The Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 (the amending Act) implemented recommendations made by the Royal Commission into Institutional Responses to Child Sexual Abuse and the Child Sexual Offences Review team to reform the law with respect to sexual offences. These included repealing the basic and aggravated offences of indecent assault (former ss 61L and 61M Crimes Act 1900) and replacing them with separate offences of sexual touching in ss 61KC and 61KD for adults, and in ss 66DA and 66DB for children.

The new provisions apply to offences committed on or after 1 December 2018: Crimes Act 1900, Sch 11, Pt 35.

For offences committed before 1 December 2018 see [5-650] Indecent assault.

“Sexual touching” is defined in s 61HB(1) as a person touching another person in circumstances a reasonable person would consider to be sexual:

(a) 

with any part of the body or with anything else, or

(b) 

through anything, including anything worn by the person doing the touching or by the person being touched.

The following matters in s 61HB(2) must be considered when deciding whether a reasonable person would consider touching to be sexual:

(a) 

whether the area of the body touched or doing the touching is the person’s genital area or anal area or (in the case of a female person, or transgender or intersex person identifying as female) the person’s breasts, whether or not the breasts are sexually developed, or

(b) 

whether the person doing the touching does so for the purpose of obtaining sexual arousal or sexual gratification, or

(c) 

whether any other aspect of the touching (including the circumstances in which it is done) makes it sexual.

Offences against ss 61KC, 61KD, 66DA and 66DB are “prescribed sexual offences”: s 3 Criminal Procedure Act 1986. Particular provisions of the Criminal Procedure Act and the Crimes Act apply to proceedings for such offences: see Evidence given by alternative means at [1-360]ff, and Closed court, suppression and non-publication orders at [1-349].

See also: Criminal Practice and Procedure NSW at [8-s 61KC], [8-s 61KD], [8-s 66DA] and [8-s 66DB].

[5-1775] Suggested direction — basic offence (s 61KC)

Note: It is good practice to provide the four elements of the offence to the jury in written form.

The suggested direction is based on the offence in s 61KC(a). For incitement offences see the commentary at [5-1798] Notes — Incitement offences.

It is suggested that consideration be given to whether it is more helpful to explain the competing cases of the parties overall for the jury after identifying the separate elements of the offence or as the directions are given for each element.

For the suggested direction for offences involving a child, see [5-1797] Suggested direction — sexually touching a child under 10 (s 66DA).

The accused is charged with sexual touching. The Crown case is that [briefly outline the incident/s to which the charge relates].

To prove the accused is guilty, the Crown must prove beyond reasonable doubt each of the following four elements which make up the offence.

1. 

the accused intentionally touched the complainant;

2. 

the touching was sexual;

3. 

the complainant did not consent to being touched in that way; and

4. 

the accused knew the complainant did not consent.

You can only find the accused guilty if the Crown proves each element beyond reasonable doubt. If the Crown fails to prove any one of them you must find the accused not guilty.

1. 

The accused intentionally touched the complainant

The slightest contact with the complainant is enough to amount to touching.

The touching does not have to be a hostile or aggressive act or one that caused the complainant fear or pain, but it must be an intentional touching; not an accidental touching.

2. 

The touching was sexual

Sexual touching means touching another person with any part of the body [add where relevant: “or with anything else, or through anything, including through anything worn by the person doing the touching or by the person being touched”], in circumstances where a reasonable person would consider the touching to be sexual.

In determining whether a reasonable person would consider the touching was sexual, you should consider everything that you regard as relevant, but there are some particular matters you are required to take into account. They are:

  • the part of the body touched, [or if appropriate: “or doing the touching”]. Was it the genital or anal area or [only in the case of a female person, or a transgender/intersex person identifying as female: the breasts [and add where relevant: whether or not the breasts are sexually developed]]?

  • whether the person doing the touching did so for the purpose of obtaining sexual arousal or sexual gratification.

  • was there any other aspect of the touching (including the circumstances in which it was done) which made it sexual?

The Crown is not required to prove any particular one of these matters. They are matters you are required to take into account, along with anything else you consider to be relevant when you are deciding whether the Crown has proved that the touching was “sexual”.

[Where appropriate: A touching done for genuine medical or hygienic purposes is not a sexual touching. As that is what the accused says was the reason for the touching in this case, it is a matter for the Crown to prove beyond reasonable doubt that it was not done for such a purpose.]

3. 

The sexual touching was done without the complainant’s consent

The third element concerns the complainant’s state of mind. The Crown must prove that the sexual touching was done without [her/his] consent.

Consent means that a person freely and voluntarily agrees to something. So, the Crown is required to prove the complainant did not freely and voluntarily agree to the sexual touching.

You are concerned with whether the complainant did not consent to the touching at the time the touching occurred. What the complainant’s state of mind was before or after the touching might provide a guide, but the question is whether the Crown has proved that [she/he] was not consenting at the time the touching occurred.

[Where appropriate: The complainant said in evidence that [she/he] did not consent to being sexually touched. If you accept that evidence, then you could be satisfied the Crown has proved this element.]

In deciding whether you accept that the complainant was not consenting you may also take into account any of the following:

(a) 

Consent obtained after persuasion is still consent, provided that ultimately it is given freely and voluntarily.

(b) 

Consent, or lack of consent, may be indicated by what the complainant said or did. In other words, the complainant’s words or actions, or both, may indicate whether or not there was consent.

(c) 

A person who does not offer actual physical resistance to sexual touching is not, by reason only of that fact, to be regarded as consenting to that touching. There is no legal requirement for a person to physically resist before a jury can find that the person did not consent.

[If applicable, add one or more of the following [s 61HE(5)–(6)]:

The law provides that a person does not consent to sexual touching:

  • if they do not have the capacity to consent, including because of their age or cognitive incapacity, or

  • if they did not have the opportunity to consent because they were unconscious or asleep, or

  • if they consent because of threats of force or terror (whether the threats are against, or the terror is instilled in, them or another person), or

  • if they consent because they were unlawfully detained, or

  • if the person consented under a mistaken belief:

    • as to the other person’s identity, or

    • that the other person is married to the person, or

    • that the sexual activity is for health or hygienic purposes, or

    • about the nature of the activity that has been induced by fraudulent means.]

[If applicable, add one or more of the following [s 61HE(8)]:

It may be established that the complainant did not consent to the sexual touching if:

  • [she/he] consented while substantially intoxicated by alcohol or any drug, or

  • [she/he] consented because of intimidatory or coercive conduct, or other threat, even though that conduct does not involve a threat of force, or

  • [she/he] consented because of the abuse of a position of authority or trust.

If you are satisfied the complainant consented in that circumstance, it does not necessarily follow that you should be satisfied beyond reasonable doubt [she/he] did not consent. The essential matter the Crown must prove is that the complainant did not consent in the sense that [she/he] did not freely and voluntarily agree to the sexual touching.]

To repeat what I have said, the third element the Crown must prove concerns the complainant’s state of mind. The Crown must prove the complainant did not consent to the sexual touching at the time it occurred.

4. 

The accused knew the complainant did not consent

The fourth element concerns the accused’s state of mind. The Crown is required to prove the accused knew the complainant did not consent to the sexual touching.

This is a question about what the accused’s state of mind actually was. It is not a question about what you or anyone else would have known, thought or believed in the circumstances. It is what [he/she] knew, thought or believed.

You must consider all of the circumstances, including any steps taken by the accused to make sure the complainant consented to the sexual touching.

[Add, if appropriate: The law is that any intoxication of the accused that was self-induced must be ignored. If you consider that [he/she] was intoxicated by voluntarily drinking alcohol [or taking drugs], you must ignore that and decide this element by considering what [his/her] state of mind would have been if [he/she] had not been intoxicated.]

The law says the Crown will have proved the accused knew the complainant did not consent to sexual touching if: [refer only to those of the following matters that arise from the evidence — see further [5-1780] Notes below]

(a) 

the accused knew the complainant did not consent; or

(b) 

the accused was reckless as to whether the complainant consented because [he/she] realised there was a possibility [she/he] did not consent; or

(c) 

the accused was reckless as to whether the complainant consented because [he/she] did not even think about whether [she/he] consented but went ahead not caring, or considering it was irrelevant whether [she/he] consented; or

(d) 

the accused may have actually believed the complainant consented, but [he/she] had no reasonable grounds for that belief; or

(e) 

the accused knew the complainant consented under a mistaken belief about [refer to those parts of s 61HE(6) that may apply].

To repeat what I said at the beginning of these directions, you can only find the accused guilty if the Crown proves each of the four elements beyond reasonable doubt. If the Crown fails to prove any one of them you must find the accused not guilty.

[5-1780] Notes

1. 

It is important to tailor the directions to the circumstances and issues in the particular trial. Where the only issue is whether the alleged act occurred, or whether the accused was the offender and there is no issue about the complainant not consenting, it may be confusing to direct the jury about aspects of the definition of consent in s 61HE(6) that do not apply. See R v Mueller (2005) 62 NSWLR 476 at [3]–[4] and [42].

2. 

The Crown must prove the alleged complainant did not consent. What amounts to knowledge of consent and how consent may be negated is addressed in detail in s 61HE.

3. 

Consent is not an element of a sexual touching offence if the alleged victim is a child: s 61HE(1) lists the offences to which the definition of consent applies.

4. 

The exception for genuine medical or hygienic purposes in s 61HB(3) may be excluded when the relevant acts giving rise to the offence occurred during a medical examination: Decision Restricted [2020] NSWCCA 138 at [51]–[65]. There is no requirement that the sole purpose of touching in such a context be for sexual gratification. The exception is only engaged when the relevant act is carried out for proper medical purposes: at [51]; see also [99].

5. 

Evidence that, at the relevant time, the accused was intoxicated cannot be taken into account if it was self-induced: s 61HE(4)(b).

6. 

Where a trial involves an offence of sexual touching and an offence of indecent assault (Crimes Act, s 61M, now repealed) separate consent directions are required: Holt v R [2019] NSWCCA 50 at [64].

[5-1785] Suggested direction — aggravated offence (s 61KD)

If the Crown has charged the accused with an aggravated offence, adapt so much of the suggested direction for the basic offence as is appropriate and continue with whichever of the following aggravated circumstances have been relied upon.

Because it is possible for the jury to reach different verdicts, it may avoid confusion if they are provided with a written list of possible verdicts (a “verdict sheet”), particularly if the trial involves multiple counts.

The final element the Crown must prove beyond reasonable doubt is that the offence was aggravated because [specify circumstance of aggravation]. You only need to consider this element if you are satisfied the Crown has proved the first four elements of the offence beyond reasonable doubt.

In company — s 61KD(2)(a)

[This direction is based upon the sexual touching being carried out by the accused in the presence of an alleged co-offender in his/her company. Modification will be required if the roles are different.]

It is an aggravating circumstance if the offence was committed in the company of another person or persons. The Crown alleges the accused committed the offence when [he/she] was in the company of [alleged co-offender]. The Crown case is that when the accused sexually touched the complainant, [alleged co-offender] was [specify nature of presence].

The Crown will prove the offence was committed “in company” if it proves beyond reasonable doubt:

(a) 

the accused and [alleged co-offender] shared a common purpose that the complainant would be sexually touched;

and

(b) 

[alleged co-offender] was physically present when the sexual touching occurred.

For [alleged co-offender] to be “physically present”, the Crown must prove [he/she] was sufficiently close [refer only to those of the following the Crown relies on]:

(a) 

to intimidate or coerce the complainant in relation to the sexual touching;

or

(b) 

to encourage or support the accused in sexually touching the complainant.

It is not enough for the Crown to prove either the accused shared a common purpose with [alleged co-offender] that the complainant would be sexually touched, or that [alleged co-offender] was physically present. The Crown must prove both of these beyond reasonable doubt before you can conclude the offence was committed in company.

[If appropriate, add: It is not enough [alleged co-offender] shared a common purpose with the accused that the complainant would be sexually touched, but was not physically present in the way in which I have defined that concept. For example, it would not be enough if [alleged co-offender] was somewhere else acting as a look-out, or had provided encouragement to the accused at some time before the sexual touching occurred.]

[Summarise the evidence relied on by the Crown and the defence case.]

Under authority — s 61KD(2)(b)

The Crown alleges the aggravating circumstance that the offence was committed when the complainant was under the authority of the accused. To establish this, the Crown must prove the complainant was under [his/her] care, supervision or authority [whether generally or at the time of the offence]. It is a matter for you to determine whether the evidence establishes the complainant was under the care, supervision or authority of the accused.

[Summarise the evidence relied on by the Crown and the defence case].]

Complainant has serious physical disability or cognitive impairment — 61KD(2)(c), (d)

It is an aggravating circumstance if the offence was committed while the complainant had a [serious physical disability OR cognitive impairment].

The law recognises a variety of forms of “cognitive impairment”, including where a person has a [nominate the form of cognitive impairment according to the list in s 61HD and in accordance with the evidence relied on in the particular case].

OR

The law does not define what a “serious physical disability” is. That is a matter for you to decide. However, it is an ordinary English phrase, and you should give it its ordinary English meaning. It obviously focuses on disability of the body, as opposed to the mind and requires you to evaluate whether there was a disability that was a serious one.

To prove this element, the Crown relies upon the evidence of [summarise relevant evidence].

That evidence [has/has not] been disputed. [Summarise defence case as necessary.]

Conclusion

If you are satisfied the Crown has proved all five elements of the aggravated offence of sexual touching in the indictment beyond reasonable doubt you must find the accused guilty. When asked for the verdict [for this count], your foreperson would simply announce, “guilty”.

If you are satisfied the Crown has only proved the first four elements of the basic offence of sexual touching, but has not proved the element of aggravation, then you would acquit the accused of the aggravated offence and return a verdict of guilty for the basic offence. When asked for the verdict [for this count], your foreperson would announce, “not guilty of aggravated sexual touching but guilty of sexual touching”.

If you are not satisfied the Crown has proved any one of the four elements of the basic offence of sexual touching, then you would acquit the accused completely. When asked for the verdict [for this count], your foreperson would simply announce, “not guilty”.

[5-1790] Notes — aggravated sexual touching — under s 61KD

1. 

As indicated in the suggested direction, the “circumstances of aggravation” for a charge against s 61KD are listed in s 61KD(2).

2. 

An alternative verdict for the basic offence in s 61KC is available for a charge under s 61KD: s 80AB(1).

3. 

To establish that the offence was committed in company, the Crown must show another person was physically present and shared a common purpose with the accused: R v Button (2002) 54 NSWLR 455 at [120]. Whether or not another person is physically present depends on what was described in Button at [125] as:

… the coercive effect of the group. There must be such proximity as would enable the inference that the coercive effect of the group operated, either to embolden or reassure the offender in committing the crime, or to intimidate the victim into submission.

See also R v ITA [2003] NSWCCA 174 at [137]–[140].

Mere presence of another person is not sufficient: R v Crozier (unrep, 8/3/96, NSWCCA); Kelly v The Queen (1989) 23 FCR 463 at 466. The complainant’s perspective (of being confronted with more than one person) is relevant but not determinative. “If two or more persons are present, and share the same purpose, they will be ‘in company’, even if the victim was unaware of the other person”: Button at [120]. It is sufficient if the complainant is confronted by the “combined force of two or more persons”, even if the other person(s) did not intend to physically participate if required: R v Leoni [1999] NSWCCA 14 at [20] (referring to the judgment of King CJ in R v Broughman (1986) 43 SASR 187 at 191); applied in R v Villar [2004] NSWCCA 302 at [68]. Proof of this aggravating circumstance does not depend upon the other person being convicted of the same offence: Villar at [69].

4. 

As to whether the alleged victim is under the authority of the accused (s 61KD(2)(b)), s 61H(2) provides that “a person is under the authority of another person if [they are] in the care, or under the supervision or authority, of the other person”. In KSC v R [2012] NSWCCA 179 at [125], McClellan CJ at CL (Davies and Fullerton JJ agreeing) concluded that the components in the definition of care and supervision made plain the nature of the relationship to which section was directed and that each of the words “care”, “supervision” and “authority” were ordinary English words a jury would have no difficulty understanding. See also R v Howes [2000] VSCA 159 at [4]; R v MacFie [2000] VSCA 173 at [18], [21]. It is not confined to relationships based on a legal right or power: Howes at [50]; MacFie at [20]–[21].

5. 

“Serious physical disability” (s 61KD(3)(d)) is not defined. The following definitions from s 3(1) Community Welfare Act 1987 may be considered a guide as to the concepts the jury could be invited to consider in deciding the “ordinary English meaning”:

physically disabled person” includes a person who, as a result of having a physical impairment to [their] body, and having regard to any community attitudes relating to persons having the same physical impairment as that person and to the physical environment, is limited in [their] opportunities to enjoy a full and active life.

physical impairment”, in relation to a person, means any defect or disturbance in the normal structure and functioning of the person’s body, whether arising from a condition subsisting at birth or from illness or injury, but does not include intellectual impairment.

6. 

“Cognitive impairment” is defined in s 61HD and provides that a person has such an impairment if they have:

(a) 

an intellectual disability, or

(b) 

a developmental disorder (including an autistic spectrum disorder), or

(c) 

a neurological disorder, or

(d) 

dementia, or

(e) 

a severe mental illness, or

(f) 

a brain injury,

that results in the person requiring supervision or social habilitation in connection with daily life activities.

[5-1795] Suggested direction — sexually touching a child under 10 (s 66DA)

Note: It is good practice to provide the elements of the offence to the jury in written form.

This direction can be adapted for an offence involving a child against s 66DB. For incitement offences see the commentary at [5-1798] Incitement offences.

It is suggested that consideration be given to whether it is more helpful to explain the competing cases of the parties overall for the jury after identifying the separate elements of the offence or as the directions are given for each element.

The accused is charged with sexually touching the complainant. The Crown case is that [briefly outline the incident/s to which the charge relates].

Before you can find the accused is guilty, the Crown must prove beyond reasonable doubt each of the following elements of the offence.

1. 

the complainant was a child under 10 years old;

2. 

the accused intentionally touched the complainant; and

3. 

the touching was sexual.

You can only find the accused guilty if the Crown proves each element beyond reasonable doubt. If the Crown fails to prove any one of them then you must find the accused not guilty.

1. 

The complainant was a child under 10

The law says a child is a person who is under the age of 10 years. In this case there is no dispute the complainant was a child of [age] at the time specified on the indictment. [This will require adaptation if the complainant’s age is disputed].

2. 

The accused intentionally touched the complainant

The slightest contact with the complainant is enough to amount to touching. The touching does not have to be a hostile or aggressive act or one that caused the complainant fear or pain, but it must be an intentional touching; not an accidental touching.

3. 

The touching was sexual

Sexual touching means touching another person with any part of the body [add where relevant: “or with anything else, or through anything, including through anything worn by the person doing the touching or by the person being touched”], in circumstances where a reasonable person would consider the touching to be sexual.

In determining whether a reasonable person would consider the touching was sexual, you should consider everything you regard as relevant, but there are some particular matters you are required to take into account. They are:

  • the part of the body touched, [or if appropriate: “or doing the touching”]. Was it the genital or anal area or [only in the case of a female person, or a transgender/intersex person identifying as female: the breasts [and add where relevant: whether or not the breasts are sexually developed]]?

  • whether the person doing the touching did so for sexual arousal or sexual gratification.

  • was there any other aspect of the touching (including the circumstances in which it was done) which made it sexual?

The Crown is not required to prove any particular one of these matters. They are matters you are required to take into account, along with anything else you consider to be relevant when you are deciding whether the Crown has proved the touching was “sexual”.

[Where appropriate: Touching done for genuine medical or hygienic purposes is not sexual touching. As that is what the accused says was the reason for the touching in this case, it is a matter for the Crown to prove beyond reasonable doubt that it was not done for such a purpose.]

[If the circumstances of the particular case require it: Some sexual offences require the Crown to prove the complainant did not consent. But where the alleged offence involves a child, consent is irrelevant. The law says that children cannot consent to sexual activity.]

If you find that the Crown has proved all three elements of the offence beyond reasonable doubt, then your verdict should be “guilty”. However, if you are not satisfied the Crown has proved any one element of the offence, then your verdict should be “not guilty”.

[5-1797] Notes — sexual touching of a child

1. 

Section 80AF Crimes Act 1900, which addresses the situation where there is some uncertainty about the timing of a particular offence or offences against a child, may require consideration. Whether or not s 80AF offended the principles concerning retrospectivity was considered in Stephens v R [2021] NSWCCA 152. Although s 80AF was enacted to address issues associated with proving the timing of historical sexual offences, it may require consideration in contemporary cases as between offences against ss 66DA and 66DB.

2. 

The suggested direction at [5-1795] could be adapted for an offence of sexually touching a young person between 16 and 18 years old under special care in s 73A. “Special care” is broadly defined in s 73A(3).

[5-1798] Notes — incitement offences

1. 

The offences of sexual touching include inciting an alleged victim to sexually touch the alleged offender or a third person, or inciting a third person to sexually touch the alleged victim (ss 61KC(b)–(d), 61KD(b)–(d), 66DA(b)–(d) and 66DB(b)–(d)).

2. 

It is not an offence to incite an offence where the offence is constituted by inciting another person to sexual touching: s 80G(5)(a).

3. 

“Incite” is not defined in the Act. Its meaning was discussed in R v Eade [2002] NSWCCA 257, where Smart AJ observed at [59]–[60]:

In Young v Cassells (1914) 33 NZLR 852 Stout CJ…said: “The word ‘incite’ means to rouse; to stimulate; to urge or spur on; to stir up; to animate.” In R v Massie [1999] VR 542 at 564, Brooking JA, with whom Winneke P and Batt JA agreed, said of ‘incite’, “common forms of behaviour covered by the word are ‘command’, ‘request’, ‘propose’, ‘advise’, ‘encourage’, or ‘authorise’”.

It was pointed out in Regina v Asst Recorder of Kingston [1969] 2 QB 58 at 62 that with the offence of incitement it is merely the incitement which constitutes the offence and that it matters not that no steps have been taken towards the commission of the substantive offence nor whether the incitement had any effect at all: Young v Cassells…”

4. 

The incitement must be to commit the specific offence at hand: Walsh v Sainsbury (1925) 36 CLR 464 at 476; Clyne v Bowman (1987) 11 NSWLR 341 at 347–348. It is not necessary to prove the person incited acted upon the incitement or whether the incitement had any effect. However, it is necessary to prove that the course of conduct urged would, if it had been acted upon as the inciter intended it to be, amount to the commission of the offence: R v Dimozantis (unrep, 7/10/1991, Vic CCA); R v Assistant Recorder of Kingston-Upon-Hull; Ex parte Morgan [1969] 2 QB 58 at 62.