Sexual Offences
Sexual assault offences are serious, and a charge can be overwhelming for anyone. Receiving comprehensive legal advice and great support from the right lawyer can relieve much of this burden.
Our team at Criminal Lawyers – Defending You has the knowledge and intuition necessary to effectively protect your innocence or reduce your charges. Please see below for more information on the offence that relates to you. If you have any further questions in regards to these offences or want to discuss your situation with proficient and experienced lawyers, contact our team at (02) 9060 9799 or email our Principal Lawyer at samuel@saslawyers.com.au.
Sexual Offences
Sexual Assault
Sexual assault is an offence under section 61I of the Crimes Act 1900 (NSW). If the assault occurred in circumstances of aggravation listed in section 61J(2) of the Crimes Act 1900 (NSW) or was committed in company, harsher penalties may be applied.
What must the Prosecution Prove?
The Prosecution must prove these elements beyond a reasonable doubt:
You voluntarily had sexual intercourse with another person
Without the consent of the other person and
You must know the other person did not consent to the sexual intercourse
In Section 61J, Circumstances of Aggravation Refer to Circumstances in which:
a) at the time of, or immediately before or after, the commission of the offence, the alleged offender intentionally or recklessly inflicts actual bodily harm on the alleged victim or any other person who is present or nearby, or
b) at the time of, or immediately before or after, the commission of the offence, the alleged offender threatens to inflict actual bodily harm on the alleged victim or any other person who is present or nearby by using an offensive weapon or instrument, or
b1) at the time of, or immediately before or after, the commission of the offence, the alleged offender threatens to inflict grievous bodily harm or wounding on the alleged victim or any other person who is present or nearby, or
c) the alleged offender is in the company of another person or persons, or
d) the alleged victim is under the age of 16 years, or
e) the alleged victim is (whether generally or at the time of the commission of the offence) under the authority of the alleged offender, or
f) the alleged victim has a serious physical disability, or
g) the alleged victim has a cognitive impairment, or
i) the alleged offender deprives the alleged victim of his or her liberty for a period before or after the commission of the offence.
The Prosecution must prove only one of these circumstances occurred.
h) the alleged offender breaks and enters into any dwelling-house or other building intending to commit the offence or any other serious indictable offence, or
In section 61JA, Aggravated Sexual Assault in Company Refers to Circumstances Where a Person:
(a) who has sexual intercourse with another person without the consent of the other person and who knows that the other person does not consent to the sexual intercourse, and
(b) who is in the company of another person or persons, and
(c) who—
at the time of, or immediately before or after, the commission of the offence, intentionally or recklessly inflicts actual bodily harm on the alleged victim or any other person who is present or nearby, or
at the time of, or immediately before or after, the commission of the offence, threatens to inflict actual bodily harm on the alleged victim or any other person who is present or nearby by using an offensive weapon or instrument, or
deprives the alleged victim of his or her liberty for a period before or after the commission of the offence
Maximum Penalties
The maximum penalty in the Local Court is 2 years imprisonment.
Sexual Assault
The maximum penalty in the District Court is 14 years imprisonment.
Aggravated Sexual Assault
The maximum penalty in the District Court is 20 years imprisonment.
Aggravated Sexual Assault in Company
The maximum penalty in the District Court is life imprisonment.
The maximum penalty is reserved for cases that are the most serious. The penalty you will receive will depend on individual circumstances and the nature of your offence. In NSW, a court can impose any of the following penalties:
Fine
Dismissal Without Conviction
Conditional Release Order (CRO)
Community Correction Order (CCO)
Intensive Correction Order (ICO)
Conviction Without Penalty
Deferral for Rehabilitation
Imprisonment
Defences
Some possible defences available to this charge can include:
You were suffering from mental health or cognitive impairment at the time of the offence (Mental Health or Cognitive Impairment)
Honest and Reasonable Mistake – At the time of the conduct of the offence, you were under a mistaken belief or ignorant of fact in relation to consent. In determining this, the court will consider whether the mistaken belief or ignorance was reasonable in the circumstances.
Sexual Touching
Sexual touching refers to non-consensual physical contact of a sexual nature with another person. It is an offence under section 61KC of the Crimes Act 1900 (NSW). Sexual touching is an offence that replaced the former offence of indecent assault in NSW. If the offence occurred in circumstances of aggravation listed in section 61KD(2) of the Crimes Act 1900 (NSW) harsher penalties may apply.
What Must the Prosecution Prove?
The Prosecution must prove these elements beyond a reasonable doubt:
You sexually touched the alleged victim, or
You incited the alleged victim to sexually touch you, or
You incited a third person to sexually touch the alleged victim, or
You incited the alleged victim to sexually touch a third person
You did so without the consent of the alleged victim and you knew that the alleged victim did not consent
What is Sexual Touching?
Sexual touching means a person touching another person:
with any part of the body or with anything else, or
through anything, including anything worn by the person doing the touching or by the person being touched
and in circumstances where a reasonable person would consider the touching to be sexual
Touching done for genuine medical or hygienic purposes is not sexual touching.
Examples of Sexual Touching
Examples of unwanted physical contact of a sexual nature include:
An unwanted kiss
The intentional touching of any intimate part including the breasts, anus, vagina, or penis
Any touch, even the smallest of touches or contact including touching in the course of ordinary everyday life can amount to unwanted physical contact of a sexual nature
What Matters are Taken into Account in Deciding whether a Reasonable Person Would Consider Touching to be Sexual?
Whether the area of the body touched or doing the touching is the person’s genital area or anal area or (in the case of a female person, or transgender or intersex person identifying as female) the person’s breasts, whether or not the breasts are sexually developed, or
Whether the person doing the touching does so to obtain sexual arousal or sexual gratification, or
Whether any other aspect of the touching (including the circumstances in which it is done) makes it sexual.
In Section 61KD, Circumstances of Aggravation Refer to Circumstances in which:
the alleged offender is in the company of another person or persons, or
the alleged victim is (whether generally or at the time of the commission of the offence) under the authority of the alleged offender, or
the alleged victim has a serious physical disability, or
the alleged victim has a cognitive impairment.
Maximum Penalties
The maximum penalty in the Local Court is 2 years imprisonment.
Sexual touching
The maximum penalty in the District Court is 5 years imprisonment.
Aggravated sexual touching
The maximum penalty in the District Court is 7 years imprisonment.
The maximum penalty is reserved for cases that are the most serious. The penalty you will receive will depend on individual circumstances and the nature of your offence. In NSW, a court can impose any of the following penalties:
Fine
Dismissal Without Conviction
Conditional Release Order (CRO)
Community Correction Order (CCO)
Intensive Correction Order (ICO)
Conviction Without Penalty
Deferral for Rehabilitation
Imprisonment
Defences
Some possible defences available to this charge can include:
Touching was done for genuine medical or hygienic purposes
The act you were committing was not sexual touching
The act was not done toward another person
Sexual Act
A sexual act refers to conduct that is unlawful when it is toward a person that does not consent. It includes acts that do not involve touching but are sexual in nature. It is an offence under section 61KE of the Crimes Act 1900 (NSW). A sexual act is an offence that replaced the former offence of acts of indecency in NSW. If the offence occurred in circumstances of aggravation listed in section 61KF(2) of the Crimes Act 1900 (NSW) harsher penalties may apply.
What Must the Prosecution Prove?
The Prosecution must prove these elements beyond a reasonable doubt:
You carried out a sexual act with or towards the alleged victim, or
You incited the alleged victim to carry out a sexual act with or towards yourself, or
You incited a third person to carry out a sexual act with or towards the alleged victim, or
You incited the alleged victim to carry out a sexual act with or towards a third person,
You did so without the consent of the alleged victim and you knew that the alleged victim did not consent
What is a Sexual Act?
A sexual act means an act (other than sexual touching) carried out in circumstances where a reasonable person would consider the act to be sexual.
An act carried out for genuine medical or hygienic purposes is not a sexual act.
Examples of sexual acts include:
Carrying out or inciting the complainant to carry out a simulated sexual act
Masturbating in front of the complainant or inciting a complainant to masturbate
What Matters are Taken into Account in Deciding Whether a Reasonable Person would Consider an Act to be Sexual?
Examples of unwanted physical contact of a sexual nature include:
An unwanted kiss
The intentional touching of any intimate part including the breasts, anus, vagina, or penis
Any touch, even the smallest of touches or contact including touching in the course of ordinary everyday life can amount to unwanted physical contact of a sexual nature
In section 61KF, Circumstances of Aggravation Refer to Circumstances in which:
the alleged offender is in the company of another person or persons, or
the alleged victim is (whether generally or at the time of the commission of the offence) under the authority of the alleged offender, or
the alleged victim has a serious physical disability, or
the alleged victim has a cognitive impairment.
Maximum Penalties
Sexual act
The maximum penalty is 18 months imprisonment.
Aggravated sexual act
The maximum penalty is 3 years imprisonment.
The maximum penalty is reserved for cases that are the most serious. The penalty you will receive will depend on individual circumstances and the nature of your offence. In NSW, a court can impose any of the following penalties:
Fine
Dismissal Without Conviction
Conditional Release Order (CRO)
Community Correction Order (CCO)
Intensive Correction Order (ICO)
Conviction Without Penalty
Deferral for Rehabilitation
Imprisonment
Defences
Some possible defences available to this charge can include:
The act was done for genuine medical or hygienic purposes
The act you were committing was not a sexual act
The act was not done toward another person
Voyeurism
Voyeurism refers to the offence of observing a person who is engaged in a private act to obtain sexual arousal or sexual gratification without the person’s consent. It is an offence under section 91J of the Crimes Act 1900 (NSW). If the offence occurred in circumstances of aggravation listed in section 91J(4) of the Crimes Act 1900 (NSW) harsher penalties may apply. If a person attempts this offence they may still be liable to the penalties of this section.
What Must the Prosecution Prove?
The Prosecution must prove these elements beyond a reasonable doubt:
You observed a person who is engaged in a private act to obtain sexual arousal or sexual gratification
You did so without the consent of the person being observed to be observed for that purpose and
You knew that the person being observed did not consent to be observed for that purpose
What is a Private Act?
A person is engaged in a private act if:
the person is in a state of undress, using the toilet, showering or bathing, engaged in a sexual act of a kind not ordinarily done in public, or engaged in any other like activity, and
the circumstances are such that a reasonable person would reasonably expect to be afforded privacy.
What Matters are Taken into Account in Deciding Whether a Reasonable Person would Consider an Act to be Sexual?
Examples of unwanted physical contact of a sexual nature include:
An unwanted kiss
The intentional touching of any intimate part including the breasts, anus, vagina, or penis
Any touch, even the smallest of touches or contact including touching in the course of ordinary everyday life can amount to unwanted physical contact of a sexual nature
In Section 91J(4), Circumstances of Aggravation Refer to Circumstances in which:
the person whom the offender observed was a child under the age of 16 years, or
the offender constructed or adapted the fabric of any building to facilitate the commission of the offence. A building includes a house or apartment, a motor vehicle, a vessel such as a boat, a tent, or any other temporary structure.
Maximum Penalties
Voyeurism
The maximum penalty is a fine of 100 penalty units ($11,000) and/or 2 years imprisonment.
Aggravated Voyeurism
The maximum penalty is 5 years imprisonment.
The maximum penalty is reserved for cases that are the most serious. The penalty you will receive will depend on individual circumstances and the nature of your offence. In NSW, a court can impose any of the following penalties:
Fine
Dismissal Without Conviction
Conditional Release Order (CRO)
Community Correction Order (CCO)
Intensive Correction Order (ICO)
Conviction Without Penalty
Deferral for Rehabilitation
Imprisonment
Filming a Person in a Private Act
Filming a person engaged in a private act is an offence under section 91K of the Crimes Act 1900 (NSW). If the offence occurred in circumstances of aggravation listed in section 91K(4) of the Crimes Act 1900 (NSW) harsher penalties may apply. If a person attempts this offence they may still be liable to the penalties of this section.
What Must the Prosecution Prove?
The Prosecution must prove these elements beyond a reasonable doubt:
You filmed another person who was engaged in a private act to obtain or enable another person to obtain sexual arousal or sexual gratification
You did so without the consent of the person being filmed to being filmed for that purpose and
You knew that the person being filmed did not consent to be filmed for that purpose
What is a Private Act?
A person is engaged in a private act if:
the person is in a state of undress, using the toilet, showering or bathing, engaged in a sexual act of a kind not ordinarily done in public, or engaged in any other like activity, and
the circumstances are such that a reasonable person would reasonably expect to be afforded privacy.
What Constitutes Filming?
A person films another person, or another person’s private parts, if the person causes one or more images (whether still or moving) of the other person or the other person’s private parts to be recorded or transmitted to enable the person or a third person to observe those images (whether during the filming or later).
In Section 91K(4), Circumstances of Aggravation Refer to Circumstances in which:
the person whom the offender filmed was a child under the age of 16 years, or
the offender constructed or adapted the fabric of any building to facilitate the commission of the offence. A building includes a house or apartment, a motor vehicle, a vessel such as a boat, a tent, or any other temporary structure.
Maximum Penalties
Filming a person engaged in a private act
The maximum penalty is a fine of 100 penalty units ($11,000) and/or 2 years imprisonment.
Filming a person engaged in a private act in circumstances of aggravation
The maximum penalty is 5 years imprisonment.
The maximum penalty is reserved for cases that are the most serious. The penalty you will receive will depend on individual circumstances and the nature of your particular offence. In NSW, a court can impose any of the following penalties:
Filming a Person's Private Parts
Filming a person’s private parts is an offence under section 91L of the Crimes Act 1900 (NSW). If the offence occurred in circumstances of aggravation listed in section 91L(4) of the Crimes Act 1900 (NSW) harsher penalties may apply. If a person attempts this offence they may still be liable to the penalties of this section. In respect of conduct occurring on the same occasion, a person cannot be convicted of this offence and an offence against section 91K, that is, filming a person engaged in a private act.
What Must the Prosecution Prove?
The Prosecution must prove these elements beyond a reasonable doubt:
You filmed another person’s private parts to obtain, or enable another person to obtain sexual arousal or sexual gratification
You did so in circumstances in which a reasonable person would reasonably expect the person’s private parts could not be filmed
You did so without the consent of the person being filmed to being filmed for that purpose and
You knew that the person being filmed did not consent to be filmed for that purpose
What Does Private Part Mean?
Private parts mean a person’s genital area or anal area, whether bare or covered by underwear, or the breasts of a female person, or transgender or intersex person identifying as female, whether or not the breasts are sexually developed.
What Constitutes Filming?
A person films another person, or another person’s private parts, if the person causes one or more images (whether still or moving) of the other person or the other person’s private parts to be recorded or transmitted to enable the person or a third person to observe those images (whether during the filming or later).
In Section 91L(4), Circumstances of Aggravation Refer to Circumstances in which:
the person whom the offender filmed was a child under the age of 16 years, or
the offender constructed or adapted the fabric of any building to facilitate the commission of the offence. A building includes a house or apartment, a motor vehicle, a vessel such as a boat, a tent, or any other temporary structure.
Maximum Penalties
Filming a person’s private parts
The maximum penalty is a fine of 100 penalty units ($11,000) and/or 2 years imprisonment.
Filming a person’s private parts in circumstances of aggravation
The maximum penalty is 5 years imprisonment.
The maximum penalty is reserved for cases that are the most serious. The penalty you will receive will depend on individual circumstances and the nature of your offence. In NSW, a court can impose any of the following penalties:
Fine
Dismissal Without Conviction
Conditional Release Order (CRO)
Community Correction Order (CCO)
Intensive Correction Order (ICO)
Conviction Without Penalty
Deferral for Rehabilitation
Imprisonment
Installing a Device to Facilitate Observation or Filming
Installing a device to facilitate the observation or filming of a person’s private parts or engagement in a private act is an offence under section 91M of the Crimes Act 1900 (NSW).
What Must the Prosecution Prove?
The Prosecution must prove these elements beyond a reasonable doubt:
You installed a device, constructed or adapted the fabric of a building,
You did so to facilitate the observation or filming of another person
You did so intending to enable yourself or any other person to commit an offence against section 91J (voyeurism), 91K (filming a person engaged in a private act), or 91L (filming a person’s private parts) of the Crimes Act 1900 (NSW).
Maximum Penalties
The maximum penalty is a fine of 100 penalty units ($11,000) and/or 2 years imprisonment.
The maximum penalty is reserved for cases that are the most serious. The penalty you will receive will depend on individual circumstances and the nature of your offence. In NSW, a court can impose any of the following penalties:
Fine
Dismissal Without Conviction
Conditional Release Order (CRO)
Community Correction Order (CCO)
Intensive Correction Order (ICO)
Conviction Without Penalty
Deferral for Rehabilitation
Imprisonment
Recording, Distributing or Threatening to Record or Distribute an Intimate Image
Recording, distributing, or threatening to record or distribute an intimate image are offences under division 15C of the Crimes Act 1900 (NSW).
Section 91P: Recording Intimate Images without Consent
What Must the Prosecution Prove?
The Prosecution must prove these elements beyond a reasonable doubt:
You intentionally recorded an intimate image of another person
You did so without the consent of the person
You knew the person did not consent or were reckless as to whether the person consented to the recording
Section 91Q: Distributing Intimate Images Without Consent
What Must the Prosecution Prove?
The Prosecution must prove these elements beyond a reasonable doubt:
You intentionally distributed an intimate image of another person
You did so without the consent of the person
You knew the person did not consent or were reckless as to whether the person consented to the recording
Section 91R: Threaten to Record or Distribute Intimate Images Without Consent
What Must the Prosecution Prove?
The Prosecution must prove these elements beyond a reasonable doubt:
You threaten to record or distribute an intimate image of another person
You did so without the consent of the person
You intended to cause that other person to fear that the threat will be carried out
What are Intimate Images?
an image of a person’s private parts, or of a person engaged in a private act, in circumstances in which a reasonable person would reasonably expect to be afforded privacy, or
an image that has been altered to appear to show a person’s private parts, or a person engaged in a private act, in circumstances in which a reasonable person would reasonably expect to be afforded privacy.
An image can be a picture or video and it does not matter if it is altered.
What Does Record Mean?
To record is to video, take or capture an image by any means
What Does Distribute Mean?
To distribute includes sending, supplying, exhibiting, transmitting, communicating to another person, or making available for viewing or access by another person, whether in person or by electronic, digital, or by any other means. A person may be regarded as having distributed an image to another person regardless of whether the other person viewed or accessed the image.
What Does Consent Mean Regarding These Particular Offences?
A person consents to the recording of an intimate image if the person freely and voluntarily agrees to the recording of the intimate image.
A person consents to the distribution of an intimate image if the person freely and voluntarily agrees to the distribution of the intimate image.
A person who consents to the recording or distribution of an image on a particular occasion is not, by reason only of that fact, to be regarded as having consented to the recording or distribution of that image or any other image on another occasion.
A person who consents to the distribution of an image to a particular person or in a particular way is not, by reason only of that fact, to be regarded as having consented to the distribution of that image or any other image to another person or in another way.
A person who distributes an image of himself or herself is not, by reason only of that fact, to be regarded as having consented to any other distribution of the image.
A person does not consent to the recording or distribution of an intimate image—
if the person is under the age of 16 years or cannot otherwise consent, including because of cognitive incapacity, or
if the person does not have the opportunity to consent because the person is unconscious or asleep, or
if the person consents because of threats of force or terror (whether the threats are against, or the terror is instilled in, that person or any other person), or
if the person consents because the person is unlawfully detained.
Other grounds of non-consent can still be raised.
Maximum Penalties
Exceptions available for a person that has been charged with an offence under section 91P (Recording intimate images without consent) or 91Q(Distributing intimate images without consent):
the conduct was done for a genuine medical or scientific purpose, or
the conduct was done by a law enforcement officer for a genuine law enforcement purpose, or
the conduct was required by a court or otherwise reasonably necessary to be done for legal proceedings, or
A reasonable person would consider the conduct of the accused person acceptable, having regard to each of the following (to the extent relevant):
the nature and content of the image
the circumstances in which the image was recorded or distributed
the age, intellectual capacity, vulnerability, or other relevant circumstances of the person depicted in the image
the degree to which the accused person’s actions affect the privacy of the person depicted in the image
the relationship between the accused person and the person depicted in the image
Child Sex Offences
Sexual Intercourse With a Child
Section 66A: Sexual Intercourse – Child Under 10 Years Old
If you are accused of engaging in sexual intercourse with a child under the age of 10, you will be charged under section 66A of the Crimes Act 1900 (NSW). If you attempted to or assaulted a child under the age of 10 years intending to have sexual intercourse you are liable to 25 years imprisonment under section 66B of the Crimes Act 1900 (NSW).
The Prosecution must prove these elements beyond a reasonable doubt:
You engaged in sexual intercourse with a child
The child was under the age of 10 years.
Section 66C: Sexual Intercourse – Child Between 10 and 16 Years Old
If you are accused of engaging in sexual intercourse with a child between the ages of 10 and 16, you will be charged under section 66C of the Crimes Act 1900 (NSW). An offence may be aggravated by certain circumstances which can increase the penalty.
The Prosecution must prove these elements beyond a reasonable doubt:
You engaged in sexual intercourse with a child
The child was between the ages of 10 and 14 or
The child was between the ages of 14 and 16
What Are the Circumstances of Aggravation?
Under section 66C, the Prosecution must prove one in the following list. Circumstances of aggravation describe circumstances in which:
at the time of, or immediately before or after, the commission of the offence, the alleged offender intentionally or recklessly inflicts actual bodily harm on the alleged victim or any other person who is present or nearby, or
at the time of, or immediately before or after, the commission of the offence, the alleged offender threatens to inflict actual bodily harm on the alleged victim or any other person who is present or nearby by means of an offensive weapon or instrument, or
the alleged offender is in the company of another person or persons, or
the alleged victim is (whether generally or at the time of the commission of the offence) under the authority of the alleged offender, or
the alleged victim has a serious physical disability, or
the alleged victim has a cognitive impairment, or
the alleged offender took advantage of the alleged victim being under the influence of alcohol or a drug to commit the offence, or
the alleged offender deprives the alleged victim of his or her liberty for a period before or after the commission of the offence, or
the alleged offender breaks and enters into any dwelling-house or other building intending to commit the offence or any other serious indictable offence
Maximum Penalties
Section 66A: Sexual intercourse – child under 10
Any person who has sexual intercourse with a child under the age of 10 is liable to the maximum penalty of life imprisonment.
Section 66C: Sexual intercourse – child between 10 and 16
Intercourse with a child between 10 and 14
Any person who has sexual intercourse with a child who is of or above the age of 10 years and under the age of 14 years is liable to the maximum penalty of 16 years imprisonment.
Intercourse with a child between 10 and 14—aggravated offence
Any person who has sexual intercourse with a child who is of or above the age of 10 years and under the age of 14 years in circumstances of aggravation is liable to the maximum penalty of 20 years imprisonment.
Intercourse with a child between 14 and 16
Any person who has sexual intercourse with a child who is of or above the age of 14 years and under the age of 16 years is liable to the maximum penalty of 10 years imprisonment.
Intercourse with a child between 14 and 16—aggravated offence
Any person who has sexual intercourse with a child who is of or above the age of 14 years and under the age of 16 years in circumstances of aggravation is liable to the maximum penalty of 12 years imprisonment.
The maximum penalty is reserved for cases that are the most serious. The penalty you will receive will depend on individual circumstances and the nature of your offence. In NSW, a court can impose any of the following penalties:
Fine
Dismissal Without Conviction
Conditional Release Order (CRO)
Community Correction Order (CCO)
Intensive Correction Order (ICO)
Conviction Without Penalty
Deferral for Rehabilitation
Imprisonment
Sexual Touching With a Child
Section 66DA: Sexual touching – child under 10
If you are accused of engaging in sexual touching with a child under 10, you could be charged under section 66DA of the Crimes Act 1900 (NSW).
The Prosecution will need to prove that a person intentionally did one of the following:
sexually touches a child who is under the age of 10 years, or
incites a child who is under the age of 10 years to sexually touch the person, or
incites a child who is under the age of 10 years to sexually touch another person, or
incites another person to sexually touch a child who is under the age of 10 years.
Section DB: Sexual touching – child between 10 and 16
If you are accused of engaging in sexual touching with a child between the ages of 10 and 16, you could be charged under section 66DB of the Crimes Act 1900 (NSW).
The Prosecution will need to prove that a person intentionally did one of the following:
sexually touches a child who is of or above the age of 10 years and under the age of 16 years, or
incites a child who is of or above the age of 10 years and under the age of 16 years to sexually touch the person, or
incites a child who is of or above the age of 10 years and under the age of 16 years to sexually touch another person, or
incites another person to sexually touch a child who is of or above the age of 10 years and under the age of 16 years
What is Sexual Touching?
Sexual touching means a person touching another person:
with any part of the body or with anything else, or
through anything, including anything worn by the person doing the touching or by the person being touched
and in circumstances where a reasonable person would consider the touching to be sexual
Touching done for genuine medical or hygienic purposes is not sexual touching.
What Matters are Taken into Account in Deciding whether a Reasonable Person would Consider Touching to be Sexual?
Whether the area of the body touched or doing the touching is the person’s genital area or anal area or (in the case of a female person, or transgender or intersex person identifying as female) the person’s breasts, whether or not the breasts are sexually developed, or
Whether the person doing the touching does so to obtain sexual arousal or sexual gratification, or
Whether any other aspect of the touching (including the circumstances in which it is done) makes it sexual.
Maximum Penalties
Section 66DA: Sexual touching – child under 10
Any person who sexually touches a child under the age of 10 is liable for the maximum penalty of 16 years imprisonment.
Section DB: Sexual touching – child between 10 and 16
Any person who sexually touches a child who is of or above the age of 10 years and under the age of 16 years is liable for the maximum penalty of 10 years imprisonment.
The maximum penalty is reserved for cases that are the most serious. The penalty you will receive will depend on individual circumstances and the nature of your offence. In NSW, a court can impose any of the following penalties:
Fine
Dismissal Without Conviction
Conditional Release Order (CRO)
Community Correction Order (CCO)
Intensive Correction Order (ICO)
Conviction Without Penalty
Deferral for Rehabilitation
Imprisonment
Defences
Some possible defences available to this charge can include:
You were coerced or threatened to act a certain way under the circumstances (Duress)
Your actions were necessary to prevent serious injury (Necessity)
Sexual Act With a Child
Section 66DC: Sexual act – child under 10
If you are accused of carrying out a sexual act with or towards a child under the age of 10, you could be charged under section 66DC of the Crimes Act 1900 (NSW).
The Prosecution will need to prove that a person intentionally did one of the following:
carries out a sexual act with or towards a child who is under the age of 10 years, or
incites a child who is under the age of 10 years to carry out a sexual act with or towards the person, or
incites a child who is under the age of 10 years to carry out a sexual act with or towards another person, or
incites another person to carry out a sexual act with or towards a child who is under the age of 10 years,
Section 66DD: Sexual act – child between 10 and 16
If you are accused of carrying out a sexual act with or towards a child who is of or above the age of 10 years and under the age of 16 years, you could be charged under section 66DD of the Crimes Act 1900 (NSW). An offence may be aggravated by certain circumstances which can increase the penalty.
The Prosecution will need to prove that a person intentionally did one of the following:
carries out a sexual act with or towards a child who is of or above the age of 10 years and under the age of 16 years, or
incites a child who is of or above the age of 10 years and under the age of 16 years to carry out a sexual act with or towards the person, or
incites a child who is of or above the age of 10 years and under the age of 16 years to carry out a sexual act with or towards another person, or
incites another person to carry out a sexual act with or towards a child who is of or above the age of 10 years and under the age of 16 years,
Section 66DF: Sexual act for the production of child abuse material – child under 16
If you are accused of carrying out a sexual act with or towards a child that is under the age of 16 years where you knew the sexual act was being filmed for the production of child abuse material, you could be charged under section 66DF of the Crimes Act 1900 (NSW).
The Prosecution will need to prove that a person intentionally did one of the following:
carries out a sexual act with or towards a child who is under the age of 16 years, or
incites a child who is under the age of 16 years to carry out a sexual act with or towards the person, or
incites a child who is under the age of 16 years to carry out a sexual act with or towards another person, or
incites another person to carry out a sexual act with or towards a child who is under the age of 16 years
and who knows that the sexual act is being filmed for the production of child abuse material
What is a Sexual Act?
A sexual act means an act (other than sexual touching) carried out in circumstances where a reasonable person would consider the act to be sexual.
An act carried out for genuine medical or hygienic purposes is not a sexual act.
What Matters are Taken into Account in Deciding whether a Reasonable Person would Consider an Act to be Sexual?
whether the area of the body involved in the act is a person’s genital area or anal area or (in the case of a female person, or transgender or intersex person identifying as female) the person’s breasts, whether or not the breasts are sexually developed, or
whether the person carrying out the act does so to obtain sexual arousal or sexual gratification, or
whether any other aspect of the act (including the circumstances in which it is carried out) makes it sexual.
In Section 66DE(2), Circumstances of Aggravation Refer to Circumstances in which:
at the time of, or immediately before or after, the commission of the offence, the alleged offender intentionally or recklessly inflicts actual bodily harm on the alleged victim or any other person who is present or nearby, or
at the time of, or immediately before or after, the commission of the offence, the alleged offender threatens to inflict actual bodily harm on the alleged victim or any other person who is present or nearby by means of an offensive weapon or instrument, or
the alleged offender is in the company of another person or persons, or
the alleged victim is (whether generally or at the time of the commission of the offence) under the authority of the alleged offender, or
the alleged victim has a serious physical disability, or
the alleged victim has a cognitive impairment, or
the alleged offender took advantage of the alleged victim being under the influence of alcohol or a drug in order to commit the offence, or
the alleged offender deprives the alleged victim of his or her liberty for a period before or after the commission of the offence, or
the alleged offender breaks and enters into any dwelling-house or other building intending to commit the offence or any other serious indictable offence.
Maximum Penalties
Section 66DC: Sexual act – child under 10
Any person who carries out a sexual act with or towards a child under the age of 10 is liable for the maximum penalty of 7 years imprisonment.
Section 66DD: Sexual act – child between 10 and 16
Any person who carries out a sexual act with or towards a child who is of or above the age of 10 years and under the age of 16 years is liable for the maximum penalty of 2 years imprisonment.
Section 66DE: Aggravated sexual act – child between 10 and 16
Any person who carries out a sexual act with or towards a child who is of or above the age of 10 years and under the age of 16 years is liable for the maximum penalty of 5 years imprisonment.
Section 66DF: Sexual act for the production of child abuse material – child under 16
Any person who carries out a sexual act with or towards a child that is under the age of 16 years where you knew the sexual act was being filmed for the production of child abuse material is liable for the maximum penalty of 10 years imprisonment.
The maximum penalty is reserved for cases that are the most serious. The penalty you will receive will depend on individual circumstances and the nature of your offence. In NSW, a court can impose any of the following penalties:
Fine
Dismissal Without Conviction
Conditional Release Order (CRO)
Community Correction Order (CCO)
Intensive Correction Order (ICO)
Conviction Without Penalty
Deferral for Rehabilitation
Imprisonment
Defences
Some possible defences available to this charge can include:
You were coerced or threatened to act a certain way under the circumstances (Duress)
Your actions were necessary to prevent serious injury (Necessity)
Procuring or Grooming a Child for Unlawful Sexual Activity
If you have been charged with procuring, grooming, or meeting a child for unlawful sexual activity, you will be prosecuted under section 66EB of the Crimes Act 1900 (NSW).
What Must the Prosecution Prove?
The Prosecution must prove these elements beyond a reasonable doubt:
You procured, groomed, or met
A child under 16 years of age
For unlawful sexual activity
What is ‘Procured, Groomed, or Met’
‘Procured’ means any intentionally obtaining a child for unlawful sexual activity.
‘Groomed’ means engaging in conduct that involves showing or exposing a child to indecent material, or providing them with drugs or alcohol with the intention of making it easier to get the child to engage in sexual activity.
‘Met’ means intentionally meeting up with a child or travelling to meet a child to procure the child for sexual activity, following grooming.
Maximum Penalties
Procuring or meeting a child
The maximum penalty for procuring or meeting a child for unlawful sexual activity is 15 years imprisonment if the child is under 14 years old. If the child is under 16, the maximum penalty is 12 years imprisonment.
Grooming children
The maximum penalty for grooming a child is imprisonment for 12 years if the child is under 14 years old. If the child is under 16, the maximum penalty is 10 years imprisonment.
The maximum penalty is reserved for cases that are the most serious. The penalty you will receive will depend on individual circumstances and the nature of your offence. In NSW, a court can impose any of the following penalties:
Fine
Dismissal Without Conviction
Conditional Release Order (CRO)
Community Correction Order (CCO)
Intensive Correction Order (ICO)
Conviction Without Penalty
Deferral for Rehabilitation
Imprisonment
Defences
A possible defence available to these charges can include:
Honest and Reasonable Mistake – At the time of the conduct of the offence, you were under a mistaken belief or ignorant of the fact. An example of this could be a mistaken belief that the child was over 16 years old. The existence of that mistaken belief or ignorance can negate any fault element. In determining this, the court will consider whether the mistaken belief or ignorance was reasonable in the circumstances.
Child Abuse Material
The production, dissemination, or possession of child abuse material is an offence under section 91H of the Crimes Act 1900 (NSW).
What Must the Prosecution Prove?
The Prosecution must prove these elements beyond a reasonable doubt:
You produced child abuse material or
Disseminated child abuse material or
Possessed child abuse material
What is Child Abuse Material?
Child abuse material means material that depicts or describes, in a way that reasonable persons would regard as being, in all the circumstances, offensive:
A person who is, appears to be, or is implied to be, a child as a victim of torture, cruelty, or physical abuse, or
A person who is, appears to be, or is implied to be, a child engaged in or apparently engaged in a sexual pose or sexual activity (whether or not in the presence of other persons), or
A person who is, appears to be, or is implied to be, a child in the presence of another person who is engaged or apparently engaged in a sexual pose or sexual activity, or
The private parts of a person who is, appears to be, or is implied to be, a child.
What Matters are Taken into Account in Deciding whether a Reasonable Person would Regard Particular Material as Being Offensive Given All the Circumstances?
whether the area of the body involved in the act is a person’s genital area or anal area or
the standards of morality, decency, and propriety generally accepted by reasonable adults, and
the literary, artistic, or educational merit (if any) of the material, and
the journalistic merit (if any) of the material; this is the merit of the material as a record or report of a matter of public interest, and
the general character of the material (including whether it is of a medical, legal, or scientific character).
(in the case of a female person, or transgender or intersex person identifying as female) the person’s breasts, whether or not the breasts are sexually developed, or
whether the person carrying out the act does so to obtain sexual arousal or sexual gratification, or
whether any other aspect of the act (including the circumstances in which it is carried out) makes it sexual.
What Does 'Private Part' Mean?
'Private part' means a person’s genital area or anal area, whether bare or covered by underwear, or the breasts of a female person, or transgender or intersex person identifying as female, whether or not the breasts are sexually developed.
Disseminating Child Abuse Material Includes:
sending, supplying, exhibiting, transmitting, or communicating it to another person, or
making it available for access by another person, or
entering into any agreement or arrangement to do so.
Possessing Child Abuse Material Includes:
any film, photograph, print, or otherwise making of child abuse material, or
altering or manipulating any image to make child abuse material, or
entering into any agreement or arrangement to do so.
Producing Child Abuse Material Includes:
any film, photograph, print, or otherwise making of child abuse material, or
altering or manipulating any image to make child abuse material, or
entering into any agreement or arrangement to do so.
Maximum Penalties
The maximum penalty is 10 years imprisonment.
The maximum penalty is reserved for cases that are the most serious. The penalty you will receive will depend on individual circumstances and the nature of your offence. In NSW, a court can impose any of the following penalties:
Fine
Dismissal Without Conviction
Conditional Release Order (CRO)
Community Correction Order (CCO)
Intensive Correction Order (ICO)
Conviction Without Penalty
Deferral for Rehabilitation
Imprisonment
Exceptions
Exceptions available for a person that has been charged with an offence under section 91H of possessing child abuse material:
the possession of the material occurred when the accused person was under the age of 18 years, and
a reasonable person would consider the possession of the material by the accused person as acceptable having regard to each of the following (to the extent relevant):
the nature and content of the material
the circumstances in which the material was produced and came into the possession of the accused person
the age, intellectual capacity, vulnerability, or other relevant circumstances of the child depicted in the material
the age, intellectual capacity, vulnerability, or other relevant circumstances of the accused person at the time the accused person first came into possession of the material and at the time that the accused person’s possession of the material first came to the attention of a police officer
the relationship between the accused person and the child depicted in the material.
Defences
Some possible defences available to these charges can include:
You did not know and could not have reasonably been expected to know that you produced, disseminated, or possessed child abuse material
The material came into your possession unsolicited and as soon as you became aware of its nature, you took reasonable steps to get rid of it
Your conduct was for a public benefit and your conduct did not extend beyond what was of public benefit
At the time of the offence, you were a law enforcement officer acting in the course of your duties and the conduct was reasonable in the circumstances to perform that duty
The material concerned was classified
Your conduct was necessary for or of assistance in conducting scientific, medical, or educational research that has been approved by the Attorney General in writing for the purposes of this section and did not contravene any conditions of that approval.
Bestiality
Bestiality is the act of human sexual relations with animals. Bestiality is listed under Subdivision 13 of the Crimes Act 1900 (NSW). Specifically, section 79 of the Crimes Act 1900 (NSW) states that any person who commits an act of bestiality with any animal shall be liable to imprisonment for 14 years.
A person can also be charged with an attempt to commit bestiality under subdivision 13, specifically under section 80 of the Crimes Act 1900 (NSW). It states that any person who attempts to commit an act of bestiality with any animal shall be liable to imprisonment for 5 years.