Sexual Touching

No. In the offence of sexual act, there does not require any physical contact.

Consent for a sexual act in NSW must be voluntary, informed, and clear:

• Voluntary: Consent must be given without any force, coercion, manipulation, or threats
• Informed: The person giving consent must understand what they are consenting to (e.g., the nature of the sexual act)
• Clear: Consent should be communicated explicitly and can be withdrawn at any time during the act

If a person is intoxicated, unconscious, or mentally impaired, they cannot give consent. Consent cannot be implied from past behaviour or previous sexual encounters.

In New South Wales, the age of consent is 16 years old. Exceptions include:

• Underage individuals (under 16) cannot legally consent to any sexual act
• If the victim is 16 or 17, but the perpetrator is in a position of authority (e.g., teacher, guardian, coach), or if there is a significant age difference, the act may still be illegal and classified as an aggravated sexual offence
• For sexual acts involving individuals under 18, a person in a position of trust (e.g., parent, carer, or teacher) cannot engage in sexual acts with someone in their care, even if the individual is 16 or 17

Sexual intercourse is a specific form of sexual act under NSW law, which generally involves the penetration of the vagina by the penis. The law may also extend this definition to include similar forms of penetration (e.g., anal intercourse). Any form of penetration that occurs without consent is considered sexual assault and can be classified as an aggravated sexual assault if there are aggravating factors, such as the use of force, threats, or the involvement of a vulnerable victim.

Yes. Engaging in any sexual act with someone who is unconscious, intoxicated, or otherwise incapacitated is illegal, as they are unable to give consent. This is considered sexual assault.

Yes, a sexual act can be consensual but still illegal under certain circumstances:

• Underage sexual activity: If both parties are under the age of consent (16), it is still illegal
• Sexual acts involving coercion: Even if consent is given, if it is coerced, manipulated, or obtained through threats or deceit, the act may be illegal
• Abuse of power: If one person is in a position of authority or trust over another, any sexual act may be illegal, even if consent is given

If someone is coerced into a sexual act, even if they do not resist, it is considered non-consensual. Coercion, manipulation, threats, or any form of pressure makes the act illegal, and the offender can be charged with sexual assault or aggravated sexual assault depending on the circumstances.

Sexual touching refers to any physical contact with a person’s intimate parts (genitals, breasts, buttocks) for a sexual purpose without their consent. This can include actions such as fondling, groping, or other forms of inappropriate contact that are sexual in nature. Sexual touching is considered an offence under NSW law if it occurs without clear, informed, and voluntary consent.

When certain aggravating factors are involved, such as violence, threats, or victim vulnerability, the charge may be elevated to aggravated sexual touching.

Consent for sexual touching must be:

• Voluntary: Given without force, coercion, or manipulation.
• Informed: The person must understand what they are consenting to.
• Clear: Consent must be communicated, either verbally or through clear, positive actions. Silence or lack of resistance is not considered consent.

Additionally, consent can be withdrawn at any time during the act. If consent is withdrawn, the touching must stop immediately.

If the victim is intoxicated, unconscious, or otherwise incapable of giving clear and informed consent (for example, due to drugs or alcohol), any sexual touching is considered sexual assault. A person cannot legally consent when incapacitated, and engaging in sexual touching under such circumstances is a serious crime under NSW law.

Yes, a person can be convicted of sexual touching or aggravated sexual touching without physical evidence. In many cases, the conviction may rely on:

• Victim testimony
• Witness statements
• Circumstantial evidence

While physical evidence (such as DNA or injuries) can support the victim’s account, the absence of physical evidence does not automatically negate the crime. The victim’s account, as well as any supporting evidence, will be considered by the court.

Yes, someone can still be convicted of sexual touching or aggravated sexual touching even if the victim did not report the incident right away. Delayed reporting is common in sexual offence cases, as victims may feel shame, fear, or emotional trauma. While immediate reporting may help strengthen the case, the victim’s testimony, circumstantial evidence, and any supporting evidence can still lead to a conviction.

In the context of aggravated sexual touching, aggravating factors can include:

• Use of force or threats: If the act involves physical force or intimidation (for example, the victim is forced or threatened into submission).
• Victim vulnerability: If the victim is incapacitated (for example, unconscious, under the influence of drugs or alcohol, or mentally impaired), underage (under 16), or otherwise unable to consent.
• Multiple offenders: If more than one person is involved in the sexual touching (that is, “in company”).
• Abuse of power or authority: If the perpetrator is in a position of trust or authority over the victim (for example, teacher, carer, or employer).
• Bodily harm or injury: If the sexual touching causes the victim physical injury or significant distress.

The main difference between aggravated sexual touching and regular sexual touching lies in the presence of aggravating factors:

• Sexual touching involves any non-consensual contact with intimate parts but does not involve factors such as force, threats, or vulnerability.
• Aggravated sexual touching involves additional elements such as the use of violence, threats, exploitation of the victim’s vulnerability (for example, being unconscious, underage, or mentally impaired), or the act being committed by more than one person. These factors make the crime more severe and result in harsher penalties.

Yes, it is possible for a sexual touching act to be consensual but still illegal under certain circumstances:

• Age of consent: Even if both parties consent, sexual touching involving someone under the age of consent (16 years old in NSW) is illegal. If the victim is underage, the act can be considered sexual assault, even if the victim agrees to the act.
• Coercion or manipulation: If consent is given under duress, threat, or manipulation, the touching may still be considered non-consensual and illegal.
• Position of power or trust: If the perpetrator is in a position of authority (for example, teacher, employer, guardian) over the victim, sexual touching may be illegal even if consent is given by someone under the legal age of consent or within the same age group.

Yes, a person can be charged with sexual touching even if no physical harm or injury is caused. The offence is primarily about the lack of consent. Sexual touching is a crime if the victim did not agree to the act, regardless of whether there is visible injury or harm. The act of non-consensual touching itself is what makes the offence illegal.

The time at which the alleged offence occurred is important. The prosecution must prove beyond reasonable doubt that:

• The complainant did not consent to the act at the time of the alleged offence
• And that you knew that the other person did not consent, or you were reckless as to whether they were consenting or not

However, it is important to note that persons under the age of 16 and those with a cognitive impairment or disability are unable to provide consent.

Sexual act as a replacement for sexual indecency, attempts to better describe the act under the law.

Aggravated is given that one of the below scenarios have occurred:

• The defendant was with at least one other person when the alleged offence occurred
• The complainant was under the authority of the defendant
• The complainant has a cognitive impairment
• The complainant suffers from a physical disability

The age of consent in New South Wales is 16 years old. This means that individuals aged 16 or older can legally engage in sexual activity with others who are also over 16. However, there are exceptions for certain relationships:

• If the victim is under 16, any sexual activity is considered an offence, regardless of consent.
• If the victim is 16 or 17, certain power imbalances (e.g., if the perpetrator is a teacher, carer, or in a position of authority) can elevate the offence to an aggravated one.
• If the victim is unable to consent, such as in cases where they are unconscious or mentally impaired, it is considered an aggravated sexual offence.

Consent is a critical factor in any sexual offence. If the victim does not consent, or if they are unable to consent (due to intoxication, unconsciousness, or mental impairment), the act may qualify as aggravated sexual assault. The absence of consent is always a key element of the crime. In aggravated cases, additional aggravating factors, such as the use of force, threats, or vulnerability of the victim, make the offence more severe and increase the legal penalties.

Yes, an aggravated sexual assault charge can be brought if the crime was committed by multiple perpetrators, often referred to as sexual assault in company. In this case, the involvement of more than one person in the assault significantly elevates the seriousness of the crime, leading to harsher penalties for the offenders.

Yes, it is possible to be convicted of an aggravated sexual assault without physical violence if other aggravating factors are present. For instance, if the victim is mentally impaired, unconscious, or underage, or if the act occurs in a context where there is a significant power imbalance, the offence can be classified as aggravated even in the absence of physical violence.

Voyeurism can be summarily described as the act of observing a person that is engaged in a private act for sexual gratification. This offence is contained under section 91J(1) of the Crimes Act 1900 (NSW). This section states that a person is guilty of voyeurism if he or she:

• For the purpose of obtaining sexual arousal or sexual gratification, observes a person who is engaged in a private act:
  • without the consent of the person being observed for that purpose, and
  • knowing that the person being observed does not consent to being observed for that purpose

The maximum penalty that this offence carries is 2 years imprisonment and/or 100 penalty points, which is subsequently equal to $11,000.

In the context of observing, filming, or distributing images or videos, private or intimate parts refer to areas of a person's body that are typically not exposed in public, such as the genitals, buttocks, or breasts. Intimate acts include any activity that is sexually explicit or highly personal, such as sexual intercourse or other sexual behaviours.

Yes, it is illegal to film, photograph, or record someone in a private setting without their consent, especially if they are in a situation where they expect privacy (e.g., in their home, bathroom, or changing room). This falls under the Crimes Act 1900 (NSW), which criminalises voyeurism and upskirting activities.

Filming someone in a public place where they have no reasonable expectation of privacy (e.g., on a street or in a park) is generally allowed, but this does not extend to filming intimate or private parts. For example, filming upskirt videos, or recording sexual acts without consent, is still illegal, even in public spaces.

Consent means that a person has given clear, voluntary, and informed agreement to be filmed or photographed. It must be specific to the context, and it can be withdrawn at any time. Consent cannot be assumed or implied from past behaviour or circumstances.

If someone has filmed or shared intimate images of you without your consent, you should:

• Contact the police to report the crime
• Seek a restraining order or other legal protection if you feel threatened
• Contact the platform where the images were shared and request removal
• Consider legal advice to explore the possibility of civil action for emotional distress

Even if someone records or shares intimate images by accident, it could still lead to legal consequences, especially if the image is shared without consent. Acting quickly to remove the image and consulting a legal expert is essential.

Sexual assault is not limited to cases involving obvious physical violence. Ignoring clear signs of discomfort, using threats or coercion, or taking advantage of someone who cannot legally consent, such as a minor or an impaired person, also constitutes sexual assault. Consent must always be freely and clearly given and can be withdrawn at any time.

A person cannot legally give consent while asleep, unconscious, or incapacitated by drugs or alcohol. Engaging in sexual intercourse with someone in this state is considered sexual assault under Section 61I of the Crimes Act 1900 (NSW), regardless of prior relationships or history.

A regular sexual assault involves non-consensual sexual intercourse or sexual activity, while an aggravated sexual assault includes additional aggravating factors that increase the seriousness of the offence and the severity of the penalties.

These aggravating factors may include:

• Use of violence or threats during the assault
• Victim vulnerability, such as being a minor, disabled, unconscious, or intoxicated
• Assault committed in company, involving more than one perpetrator
• Infliction of serious physical or psychological harm on the victim

These circumstances significantly elevate the gravity of the offence, often resulting in harsher penalties, including longer prison terms and mandatory registration on the Sex Offender Register.

An aggravated sexual assault conviction carries a maximum penalty of 25 years imprisonment, with a standard non-parole period of 10 years under Section 61J of the Crimes Act 1900 (NSW). The offender may also face mandatory registration on the Child Protection Register if the victim is a minor, along with a lifetime criminal record.

If you are accused of aggravated sexual assault, you should not make any statements to police without first speaking to a criminal defence lawyer. Anything you say can be used as evidence against you. It is vital to seek immediate legal advice to understand your rights, assess the allegations, and prepare your defence strategy. The lawyers at Brightstone Defence have extensive experience handling serious sexual offence charges and can provide confidential, expert support throughout every stage of the process.

A person constitutes as without consent to sexual intercourse if:

• The person knows that the other person does not consent to the sexual intercourse
• The person was reckless as to whether the other person consents to the sexual intercourse
• The person had no reasonable grounds to believe that the person had consented to the sexual intercourse

“In company” means that the offence was committed with at least one other person who was present and involved in the assault. This can include assisting, encouraging, or participating in the act. The law treats offences committed in company as more serious because they increase the level of intimidation and harm to the victim.

The offence of sexual assault in any aspect is regarded as amongst the most serious offences, reflecting the highest maximum penalty of life imprisonment. Upon conviction a full time custodial sentence is highly likely. The Crimes (Sentencing Procedure) Act 1999 (NSW) sets out a standard non-parole period of 15 years. Each case is different, hence why it is crucial to have strong legal representation.

Even if the alleged victim withdraws their complaint, the prosecution may still continue the case if there is sufficient evidence to proceed. This often includes physical evidence, witness statements, or other corroborating material. Legal advice is essential before making any statement to police or prosecutors.

In some cases, the charge may be downgraded to a lesser offence, such as sexual assault, or withdrawn altogether if there is insufficient evidence. Skilled legal representation can make submissions to the prosecution, negotiate plea options, or challenge the evidence in pre-trial hearings.

If convicted, sentencing will occur in the District Court (or in extreme cases, the Supreme Court). The court will consider factors such as the seriousness of the conduct, the degree of violence, your prior criminal history, and whether you have shown remorse or pleaded guilty early. Sentences often include lengthy imprisonment and mandatory registration as a sex offender.

If you have been charged or are being investigated for any ssexual offence, you should seek legal advice immediately. Early engagement with an experienced defence lawyer can make a significant difference in the outcome of your case. Contact Brightstone Defence today for expert legal assistance and confidential advice.