The offence under s 61KC
Crimes Act 1900 (NSW), s 61KC: a person who without consent intentionally sexually touches another person, or incites another person to do so, knowing the other person does not consent, is liable to imprisonment for 5 years.
Sexual touching covers the intentional touching of another person, with any part of the body or with anything else, including through clothing, where the touching is sexual and done without consent. The section also extends to inciting sexual touching — having another person touch the accused, or a third person, in those circumstances.
The consent framework that applies is the same statutory framework that governs sexual assault, including the affirmative consent provisions that commenced on 1 June 2022: consent means free and voluntary agreement, and a belief in consent is not reasonable unless the accused said or did something to ascertain it.
Formerly indecent assault — what the 2018 rename changed
Until 1 December 2018, this conduct was charged in NSW as indecent assault under the former s 61L, and related conduct as an act of indecency. The Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 replaced those offences: indecent assault became sexual touching (s 61KC), and act of indecency became sexual act (s 61KE). The change was more than a rename — the older test of "indecency" was replaced with a defined question of whether the touching is "sexual" — but the territory the offence covers is substantially the same.
Two practical points follow. Conduct alleged to have occurred before 1 December 2018 is still charged under the old indecent assault provisions, so both offences remain live in the courts. And anything written about "indecent assault in NSW" describes the law as it stood before the change — the elements below are the current ones.
What makes touching "sexual"
Crimes Act 1900 (NSW), s 61HB: touching is sexual if a reasonable person would consider it sexual, having regard to the body part touched, whether the touching is for sexual arousal or gratification, and any other aspect of the touching or its circumstances.
Whether touching is sexual is judged objectively — by what a reasonable person would consider, looking at the area of the body involved, whether the person doing the touching was seeking sexual arousal or gratification, and the whole of the circumstances. The Act expressly provides that touching done for genuine medical or hygienic purposes is not sexual touching. In contested cases, the characterisation of the touching — sexual, accidental, incidental, or innocent — is frequently the central issue.
What the prosecution must prove
- The accused touched the complainant (or incited touching), within the meaning of the Act — which includes touching through clothing;
- The touching was intentional, not accidental or incidental;
- The touching was sexual, on the objective test above;
- The complainant did not consent; and
- The accused knew the complainant did not consent — including recklessness, or a belief in consent that was not reasonable in the circumstances.
Each element must be proved beyond reasonable doubt. In crowded-venue and public-transport allegations, identification and the intentional/accidental line are often where the case is actually decided; in social-setting allegations, consent and the reasonableness of belief usually are.
Public indecency, obscene exposure and sexual touching — which offence is which
Many people search for "public indecency". NSW has no offence by that name. Conduct loosely described that way is charged under one of two quite different provisions, and the difference matters a great deal:
- Obscene exposure — Summary Offences Act 1988 (NSW), s 5: wilful and obscene exposure in, or within view of, a public place or school. A summary offence dealt with in the Local Court, carrying a maximum fine of $1,100 (10 penalty units) or 6 months' imprisonment. No touching of another person is involved.
- Sexual touching — Crimes Act 1900 (NSW), s 61KC: the intentional sexual touching of another person without consent. A substantially more serious offence, carrying up to 5 years.
The two are sometimes confused — including at the charging stage. If you have been charged, the first task is to identify precisely which offence is alleged and whether the facts asserted actually meet its elements, because the consequences, the courts' approach, and the available outcomes differ markedly between them.
The Local Court pathway, and penalties
Sexual touching carries a maximum of 5 years' imprisonment, but the charge is usually dealt with summarily in the Local Court, where the maximum that can be imposed is 2 years. The prosecution may elect to proceed on indictment in the District Court in more serious cases. Aggravated sexual touching (s 61KD — in company, victim under authority, or victim with serious physical disability or cognitive impairment) carries 7 years, and sexual touching of children is charged under separate, more serious provisions.
The full range of sentencing outcomes is available in the Local Court, from dismissal without conviction through fines and community-based orders to imprisonment. A conviction for a sexual offence also carries consequences beyond the sentence — for employment, working-with-children clearances and travel — which is part of why these charges warrant careful, early advice even where the alleged conduct sits at the lower end.
How Lenz Legal approaches sexual touching matters
Dean Lenz is an Accredited Specialist in Criminal Law. The approach to these matters is methodical: obtain the brief early, test identification and the characterisation of the contact against the elements, examine the CCTV and electronic material closely, and assess the consent and knowledge issues under the framework that applies to the date of the allegation. Where the evidence does not support the charge laid, that conversation is had with the prosecution early. Where the right course is a plea, the work turns to preparing it properly. No account should be given to police before advice is obtained.
Sexual touching — questions answered
What is public indecency in NSW?
There is no NSW offence called public indecency. Conduct described that way is usually charged as obscene exposure under s 5 of the Summary Offences Act 1988 — a summary offence with a maximum fine of $1,100 (10 penalty units) or 6 months' imprisonment — or, where another person was touched, as sexual touching under s 61KC, which is a substantially more serious charge.
What changed when indecent assault was renamed?
From 1 December 2018, indecent assault became sexual touching (s 61KC) and act of indecency became sexual act (s 61KE). The "indecency" test was replaced with a defined, objective question of whether the touching is sexual. Conduct alleged before 1 December 2018 is still charged under the old provisions.
Is sexual touching always dealt with on indictment?
No. Most s 61KC charges are finalised in the Local Court, where the maximum that can be imposed is 2 years. The prosecution can elect to proceed in the District Court, and aggravated forms of the offence sit higher in the structure.