Sexual Touching

Offence Summary 

Sexual touching (s 61KC) is intentional contact of a sexual nature without consent. Courts look at the area touched, purpose and circumstances to decide if a reasonable person would consider it sexual. Maximum penalty: 5 years’ imprisonment. 

Aggravated sexual touching (s 61KD) covers the same conduct in circumstances of aggravation (e.g. in company, complainant under authority, or with a serious physical disability or cognitive impairment). Maximum penalty: 7 years. 

What is Consent?

Consent is a free and voluntary agreement at the time and can be withdrawn at any time. Silence or lack of resistance is not enough; NSW adopts an affirmative model—you are expected to say or do something to check consent. 

There is no consent where a person is asleep/unconscious, so affected by alcohol or drugs that they cannot consent, coerced, threatened or intimidated, or unable to understand the act.

Maximum Penalties

Adult complainant/victim 

• Sexual touching (s 61KC): up to 5 years’ imprisonment. 
• Aggravated sexual touching (s 61KD): up to 7 years’ imprisonment. 

Children & “special care”

• Child under 10 (s 66DA): up to 16 years. 
• Child 10–16 (s 66DB): up to 10 years. 
• Young person 16–18 in “special care” (s 73A): up to 4 years (16–17) or 2 years (17–18). 

Important context

• These are maximums, not typical sentences. Actual outcomes depend on the facts, aggravating/mitigating factors and any plea.
• If a matter stays in the Local Court, the court can impose up to 2 years per offence (up to 5 years total across multiple offences). More serious cases proceed to the District Court. 

What does “under special care” mean?

In NSW, “under special care” covers situations where a 16–17 year old (and, for sexual touching, up to 18) is in a relationship of authority or trust with an adult. The law treats these relationships as power-imbalanced, so consent is not a defence to the special-care offences.

Examples of special-care relationships 

• Parent/grandparent, guardian or authorised carer 
• Teacher, principal  
• Health Professional 

Defence Strategies We Explore

• Consent or reasonable belief
  We examine what was said or done to check consent, and test the context (messages, calls, witnesses, CCTV).
• Not “sexual” in the circumstances
  We argue the contact wasn’t sexual to a reasonable person given the area, purpose, and setting.
• Identity and reliability
  We test who was involved and how reliable the evidence is (CCTV quality, lighting, timelines, inconsistencies).
• No intent / accident
  The law requires intentional touching. We point to incidental or accidental contact (crowds, movement, misinterpretation).
• Exclude unfair evidence
  We seek to exclude or limit evidence that is unreliable or unduly prejudicial.
• Resolution options
  Where appropriate, we negotiate charges/facts or advise on plea timing to reduce exposure.

What must police prove?

To convict for sexual touching (s 61KC), the prosecution must prove that you:

1. Intentionally engaged in sexual touching (or incited sexual touching),
2. Without the complainant’s consent, and
3. Knowing the complainant did not consent. 

“Sexual touching” includes touching with any part of the body or with anything else, even over clothing, where a reasonable person would consider it sexual.

Aggravated Sexual Touching 

Penalties increase to 7 years if the offence occurs in circumstances of aggravation, including where:

• The accused is in company;
• The complainant is under the authority of the accused;
• The complainant has a serious physical disability or cognitive impairment

Children & “Special Care”

Child under 10 (s 66DA) 

Children under 10 cannot consent. Any sexual touching is treated as very serious.

• Maximum penalty: 16 years’ imprisonment
• Consent: Not a defence, as consent cannot be given.
• Court: Table 1 offence—can be elected to the District Court

Child Aged between 10–15 (s 66DB)

For 10–15 year olds, consent is legally irrelevant.

• Maximum penalty: 10 years’ imprisonment
• Consent: Consent not legally recognised 
• Court: Table 1—may proceed in the District Court if elected

Aged between 16–18 in “special care” (s 73A)

Applies where there’s a relationship of authority/trust (e.g., teacher, coach, guardian, health professional).

• Maximum penalty: 4 years (age 16–17); 2 years (age 17–18)
• Consent: Any consent is not legally valid in a special-care relationship.
• Court: Often dealt with as Table 1; election can take it to the District Court

Related Offences

Your references also discuss related sexual offences that may be charged in the alternative or alongside sexual touching, such as sexual assault, aggravated sexual assault, grooming, and child abuse material offences. These carry different elements and higher maximums. Seek advice on specific exposure.