Sexual touching means touching another person with any part of the body, or with anything else, in circumstances where a reasonable person would consider the touching to be sexual. Section 61HB.
This offence replaces the previous offence of Indecent Assault. The offence carries a maximum penalty of 2 years imprisonment if dealt with in the Local Court and 5 years imprisonment if in the District Court. The offence of aggravated sexual touching carries a maximum penalty of 7 Years.
In deciding whether a reasonable person would consider the touching to be sexual, a court can consider the part of the body touched and the nature of touching.
Consent.
A person consents to sexual activity only if they freely and voluntarily agree to the sexual activity. A person may be unable to provide consent because they are intoxicated by drugs or alcohol; or, because of an abuse of trust or authority.
A person cannot consent if they do not have capacity to consent because of their age or cognitive incapacity; or, they are asleep or unconscious.
Knowledge.
A person has “knowledge” about lack of consent to the sexual touching if:
The person knows the alleged victim does not consent; or,
The person is reckless as to whether the alleged victim consents; or,
the person has no reasonable grounds for believing the alleged victim consents.
A court will take into account all of the above circumstances including any steps taken by the accused person to ascertain whether there has been consent.
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