Sexual Touching Without Consent in NSW — Legal Framework & Key Principles

“Sexual touching without consent” is a serious criminal offence in New South Wales under sections 61KC and 61KD of the Crimes Act 1900 (NSW). These provisions make it an offence to intentionally touch another person in a sexual way without their consent and with knowledge that they are not consenting.

Elements of the Offence

To prove sexual touching without consent, the prosecution must establish four key elements beyond reasonable doubt:

1. Intentional Touching: The accused intentionally touched the complainant — even the slightest contact is sufficient, provided it was intentional rather than accidental.
2. Sexual Nature of the Touching: The touching must be “sexual”, meaning a reasonable person would consider it sexual in all of the circumstances. This takes into account the body parts involved, the intention of the touching, and any contextual factors.
3. Lack of Consent: The touching occurred without the complainant’s consent at the time. Consent is defined as freely and voluntarily agreeing to sexual touching.
4. Accused’s Knowledge of Lack of Consent: The accused knew that the complainant was not consenting, or was reckless as to whether they were consenting. This is a subjective mental element.

The Crown bears the burden of proving each of these elements beyond reasonable doubt. If any one element is not proved, the accused must be acquitted.

Defining “Sexual” Touching

The definition of “sexual touching” is both broad and contextual. It includes touching with any part of the body, or through or with an object, in circumstances that a reasonable person would regard as sexual. Factors to be considered include:

• Which parts of the body were touched or doing the touching;
• Whether the touching was for sexual arousal or gratification;
• Any other aspect of the situation that made the contact sexual.

Medical or hygienic touching may not be sexual if genuinely carried out for those purposes, but the prosecution must prove it was not for those purposes beyond reasonable doubt.

Consent – Free, Voluntary, and Current

Central to this offence is the concept of consent. A person consents to sexual touching if, at the time it occurs, they “freely and voluntarily agree” to it. Consent can be given by words or conduct.

Importantly:

• The absence of verbal or physical resistance is not proof of consent.
• A person may withdraw consent at any time; any touching after withdrawal is without consent.
• If a complainant is asleep, unconscious, substantially intoxicated, or lacks capacity to consent, they cannot legally consent.
• Consent induced by force, fear, coercion, intimidation, or threats — even if not involving physical force — does not amount to free and voluntary consent.

These statutory principles ensure the focus remains on the complainant’s state of mind at the moment the touching occurred.

Knowledge of Non‑Consent

The offence also requires proof that the accused knew, or was reckless as to whether, the complainant was not consenting. This mental element focuses on the accused’s actual state of mind, not what a reasonable person might have known.

If there is evidence the accused may have believed there was consent, the prosecution must disprove that belief was reasonable in the circumstances known to the accused. What is reasonable is judged by community standards, excluding voluntary intoxication.

Misconceptions About Consent

Judicial guidance emphasises that juries must avoid common myths and misconceptions about sexual assault, for example, assuming that lack of resistance implies consent or that a person’s behaviour before or after the incident determines consent. The law expressly recognises that consent must be freely and voluntarily given at the time of the sexual activity itself.

Affirmative consent requires ongoing, mutual agreement; it cannot be inferred from silence or non‑resistance alone.

Aggravated Sexual Touching

Directions for aggravated sexual touching under section 61KD of the Crimes Act 1900 (NSW) may involve circumstances that increase the seriousness of the offence, such as where the complainant is under the authority of the accused or the touching occurs in the presence of others. While the essential elements of the offence remain the same, these aggravating factors can elevate sentencing exposure.

Sentencing Considerations

Sentencing for sexual touching without consent in New South Wales is guided by the principles of proportionality, deterrence, and rehabilitation, while reflecting the serious nature of the offence. Courts consider a range of factors when determining an appropriate sentence, including:

• Aggravating factors: Use of force, threats, or exploitation of a position of authority; repeated or premeditated conduct; the victim’s vulnerability, such as age, disability, or intoxication; and the impact of the offence on the complainant.
• Mitigating factors: Early guilty plea, demonstrable remorse, cooperation with authorities, or lack of prior criminal history.
• Impact on the victim: Courts give significant weight to evidence of physical, psychological, or emotional harm, recognising the profound effects sexual offences can have on victims’ lives.
• Objective seriousness: The law requires consideration of the nature of the act, the degree of sexual intrusion, and whether the conduct was opportunistic or planned.

Sentencing outcomes may range from community-based orders to substantial custodial terms, depending on the severity of the offence and presence of aggravating or mitigating factors.

Impact Statements and Victim Considerations

Victim impact statements provide courts with insight into the physical, emotional, and psychological consequences of sexual touching offences. While not determinative of guilt, these statements inform sentencing and may include:

• Personal accounts of trauma and ongoing effects;
• Disruption to daily life, work, or education; and
• Psychological assessments or counselling reports.

Courts recognise that the harm caused by sexual touching may extend beyond immediate physical contact, influencing both sentencing and restorative considerations.

“Sexual touching offences are among the most sensitive and legally complex matters that come before NSW courts. The law rightly centres on consent — not assumed from behaviour, relationship history, or silence, but clearly established through free and voluntary agreement at the time of the activity. Defence and prosecution alike must be prepared to address not just whether touching occurred, but whether consent was present, whether it was withdrawn, and what the accused actually knew or believed about that consent.

From the perspective of defence practice, I have learned that these cases demand meticulous attention to context. Factors such as the relationship between the parties, prior interactions, and surrounding circumstances often form the backbone of both the prosecution and defence arguments. At the same times, the human impact on the complainant cannot be overlooked – the courts consistently emphasis both the psychological harm and societal interests in deterring such conduct.”

— Joanna, Lamont Law