Indecent Assault

For alleged conduct from 1 December 2018, NSW replaced the former indecent-assault offences with offences including sexual touching and sexual acts. The relevant provisions are in the Crimes Act 1900 (NSW). Section 61KC concerns sexual touching, s 61KD aggravated sexual touching, s 61KE sexual acts and s 61KF aggravated sexual acts.

The date of the alleged conduct matters. Older indecent-assault allegations may still be prosecuted under the law applying at the time, including former ss 61L and 61M. The modern offence names and consent rules must not simply be applied retrospectively to every historical allegation.

Further consent reforms commenced on 1 June 2022. For relevant conduct from that date, the affirmative-consent framework is found in ss 61HF–61HK. A lawyer should identify the applicable version before advising on an old or current charge.

For sexual touching under s 61KC, the prosecution must prove the relevant intentional conduct, that the other person did not consent, and that the accused knew of the absence of consent within the statutory meaning. The section covers touching and specified forms of inciting another person to engage in touching.

Sexual touching is defined in s 61HB. The prosecution must establish its sexual character by reference to the statutory factors and circumstances. Not every accidental contact or unwanted interaction is necessarily the offence charged.

Sexual acts under s 61KE involve a distinct statutory category. Sexual touching and sexual acts should not be treated as interchangeable labels. Aggravated offences require the additional circumstance alleged, such as acting in company or specified vulnerability or authority circumstances.

The prosecution must establish the elements beyond reasonable doubt. Identity, the conduct itself, the circumstances and the applicable knowledge requirement all need examination; an allegation is not a finding.

Under s 61HI, consent means free and voluntary agreement at the time of the sexual activity. It can be withdrawn. Agreement on one occasion or to one activity does not automatically establish agreement on another occasion or to another activity.

Section 61HJ sets out circumstances in which there is no consent, including where a person does not say or do anything to communicate consent. Silence or lack of resistance is not, by itself, agreement. The statutory circumstances also address incapacity, sleep, coercion and other situations.

Section 61HK governs knowledge about consent. A belief in consent is not reasonable if the accused did not, within a reasonable time before or at the activity, say or do anything to find out whether the other person consented. The section includes a narrowly framed impairment exception with its own requirements.

These rules do not reverse the prosecution's burden of proving the offence. They define what must be assessed. Former s 61HE was replaced and should not be cited as the current consent provision.

The table concerns the current offences, not the penalties for every historical charge.

These are statutory maxima rather than typical sentences. The Local Court's sentencing powers and any applicable fine provisions must be considered separately. A charge involving a child can fall under different provisions with different elements and penalties; this table is not a guide to every child-related offence.

Sexual touching under s 61KC and sexual acts under ss 61KE–61KF are Table 2 offences under Schedule 1 to the Criminal Procedure Act 1986 (NSW). They ordinarily remain in the Local Court unless the prosecution elects indictment. Aggravated sexual touching under s 61KD is Table 1, so either party may elect. None of these listed current offences is strictly indictable.

The Local Court's individual imprisonment ceiling is generally two years, subject to the lower statutory maximum where applicable. Section 61KE therefore retains its 18-month ceiling. If the prosecution elects, the matter proceeds through the committal process towards the District Court.

Historical indecent-assault charges require their own classification check. Do not assume that an old charge follows the current offence's procedure merely because this guide uses both names.

Issues can include identity, whether the conduct occurred, whether it was intentional, its statutory character, consent and the knowledge element. The defence should be based on the actual charge and law, rather than stereotypes about how a complainant would behave.

Messages, surrounding communications, witness accounts and footage may be relevant. Preserve complete records rather than selecting only favourable extracts. The timing and context of communications can matter, and later friendly contact does not automatically establish earlier consent.

A lawyer can review the brief, obtain material lawfully, advise on police interviews and consider appropriate representations. A plea should not be entered simply to finish the matter without understanding the elements, consequences and proposed facts.

Do not contact the complainant to seek withdrawal or publish identifying material. Bail conditions and statutory protections can restrict communication and publication.

The first appearance usually deals with representation, bail and directions. A summary matter then proceeds towards a plea or defended hearing. The prosecution presents its evidence, and the defence can challenge that evidence within the rules applying to sexual-offence proceedings.

Special procedures may protect complainants and control questioning. Those procedures do not determine guilt in advance. The court still decides whether the offence has been proved beyond reasonable doubt.

If a guilty plea or finding follows, sentencing requires consideration of the offence and the person's circumstances. A lawyer can prepare relevant records and submissions. Any community-based or non-conviction option depends on statutory eligibility and the individual case, not simply the absence of previous convictions.

A conviction may affect employment checks, professional registration, travel and work involving children. Registration or reporting obligations require a separate assessment of the offence and statutory conditions. They should not be assumed to apply identically to every charge mentioned here.

Interim restrictions can also affect accommodation, employment and contact with other people. Keep your lawyer informed about practical difficulties so that any lawful variation can be considered. Until an order changes, continue to comply with it.

It can be for historical conduct governed by the former law. Conduct from 1 December 2018 is assessed under the replacement provisions where applicable. The alleged offence date is essential.

No. Section 61KD concerns aggravated sexual touching. Sexual acts are addressed by s 61KE, with aggravated sexual acts in s 61KF. The distinction affects both elements and maximum penalties.

No. The current framework requires free and voluntary agreement, and s 61HJ expressly addresses a failure to communicate consent. Absence of resistance alone is not agreement.

No. Preserve potentially relevant communications and obtain advice about providing them lawfully. Deleting or changing material may interfere with evidence and create further problems.

A criminal lawyer can identify the correct historical or current law, assess the evidence and explain the consent framework without assuming guilt or innocence. They can advise on bail, police interviews, the court pathway, representations, a defended hearing and sentencing where required.

Bring your court documents and tell the lawyer the dates alleged. Early clarification helps ensure that preparation addresses the actual offence rather than an outdated label.

This information is general in nature and does not constitute legal advice. The appropriate approach to a sexual touching, sexual act or historical indecent-assault charge depends on the circumstances of each individual case.