Have you been Charged with Sexual Assault by Compelling Sexual Touching?

What does it mean to be charged with Sexual Assault by Compelling Sexual Touching?

Being charged with sexual assault by compelling sexual touching typically refers to a legal offence where an individual is accused of forcing or coercing another person or animal to engage in sexual touching against their will. This offence is covered under Section 41 of the Crimes Act 1958 (“CA”) and carries significant penalties if convicted.

What does Touching mean?

According to Section 35B of the CA, forms of touching include:

• Part of the Body: Touching can occur using any part of the body.
• With Anything Else: It can also involve objects or instruments, not just body parts.
• Through Anything: This includes touching that occurs through clothing or other materials, indicating that physical barriers do not negate the act of touching.

2. Determining Sexual Touching

• Area of the Body: Touching specific areas that are typically associated with sexual activity (e.g., genital or anal regions, buttocks, or breasts) can categorise the act as sexual.
• Intent for Arousal: If the person doing the touching seeks or derives sexual arousal or gratification from the act, it can be deemed sexual.
• Contextual Aspects: The circumstances surrounding the touching, such as the relationship between the individuals involved or the manner in which the touching occurs, can also contribute to its classification as sexual.

What does consent mean?

1. Definition of Consent

• Consent means a free and voluntary agreement to engage in an activity.

2. Misunderstandings About Consent

• A person does not consent just because they do not resist verbally or physically.
• A person does not automatically consent if they have previously agreed to a different act, the same act at a different time or place, or the same act with someone else.

Circumstances Where Consent is Not Given

1.   Indications of non-consent

            A person does not consent if they:

• Do not say or do anything to indicate consent.
• Submit to the act due to:
  • Force or Fear: Feeling threatened or harmed, whether the threat is immediate or part of a pattern.
  • Coercion or Intimidation: Submitting because they feel pressured, regardless of when this pressure occurs.
  • Unlawful Detention: Being held against their will.
  • Abuse of Authority: Being overpowered by someone in a position of trust or authority.

2. Impairments

            A person does not consent if they:

• Are asleep or unconscious.
• Are so affected by drugs or alcohol that they cannot give consent or withdraw it.
• Cannot understand the sexual nature of the act.
• Are mistaken about the nature of the act or the identity of the person involved.

3. Specific Situations

• Mistakenly believe the act is for medical or hygienic purposes.
• Engage in acts involving animals under false pretences, like thinking it’s for veterinary purposes.
• Believe a condom is used when it has been intentionally removed or not used.
• Withdraw consent after initially agreeing.

Reasonable Belief in Consent

1. Determining Reasonable Belief

• Whether someone (Person A) reasonably believes another person (Person B) is consenting depends on the circumstances.

2. Importance of Inquiry

• If Person A does not take steps to confirm Person B’s consent before or during the act, their belief that Person B consents is not reasonable.

3. Exceptions for Cognitive Impairment

• If Person A has a cognitive impairment or mental illness (not caused by self-induced intoxication), and this impairment affects their ability to check for consent, this may impact the determination of reasonable belief.

What must the prosecution prove?

The prosecution must establish the following:

1. (A) intentionally causes another person (B) to:
   • Touch A, or
   • Touch themselves, or
   • Touch another person (C) or an animal, or
   • Be touched by (C) or an animal.
2. The touching is sexual in nature.
3. The other person (B) does not consent to the touching.
4. (A) does not reasonably believe that B consents to the touching.

According to Section 35B of the Crimes Act 1958, the act of touching can occur in the following ways:

• With any part of the body;
• With any object; or
• Through any medium, including items worn by either the person doing the touching, or the person being touched.

Touching may be considered sexual based on:

• The specific area of the body that is touched, which may include, but is not limited to, the genital or anal regions, the buttocks, or, in the case of a female or someone identifying as female, the breasts.
• The intent of the person doing the touching to seek or gain sexual arousal or gratification from the act.
• Any other relevant aspects of the touching, including the circumstances in which it occurs

Penalties for Sexual Assault by Compelling Sexual Touching:

This is a serious offence which seeks a level 5 imprisonment (10 year maximum).

Where will my case be heard?

Charges of sexual assault by compelling sexual touching will be heard in the Magistrates or County Court of Victoria.

Factors and Defences to Consider:

• Did you have consent to touch or be touched by the victim?
• What is the relationship between you and the victim?
• Was the touching sexual in nature according to section 35 of the CA.
• Is there sufficient evidence to support your charge?
• Do you have any mental health or cognitive impairments?
• Do you have any previous convictions of a similar nature?
• What were the surrounding circumstances of this offence?

Sex Offences Charges

• Offence to Perform Female Genital Mutilation
• Intention of Having Prohibited Female Genital Mutilation Performed
• Sexual Activity with the Corpse of Human Being
• Rape or Rape by Compelled Penetration
• Sexual Assault
• Sexual Assault by Compelling Sexual Touching
• Assault with Intent to Commit a Sexual Offence
• Threat to Commit a Sexual Offence
• Procuring Sexual Act by Threat or Procuring Sexual Act by Fraud
• Administration of an Intoxicating Substance for a Sexual Purpose
• Failing to Comply with Sex Offender Reporting
• Abduction or Detention for a Sexual Purpose
• Furnishing False or Misleading Information
• Indecent Act with a Child Under the Age of 16
• Sexual Activity Directed at Another Person
• Sexual Penetration of a Child Under the Age of 12
• Sexual Penetration of a Child Aged 16 or 17 Under Care, Supervision, or Authority
• Sexual Assault of a Child Aged 16 or 17 Under Care, Supervision, or Authority
• Sexual Activity in the Presence of a Child Aged 16 or 17 Under Care, Supervision or Authority
• Causing a child aged 16 or 17 under care, supervision, or authority to be present during sexual activity
• Persistent Sexual Abuse of a Child Under the Age of 16
• Encouraging a Child Aged 16 or 17 Under Care, Supervision or Authority to Engage in, or Be Involved in, Sexual Activity
• Grooming for Sexual Conduct with a Child under the Age of 16
• Loitering Near Schools Etc by a Sexual Offender
• Failure by a Person in Authority to Protect a Child from a Sexual Offence

• Abduction or Detention of a Child Under the Age of 16 for a Sexual Purpose
• Causing or Allowing a Sexual Performance Involving a Child
• Inciting or Offering a Sexual Performance Involving a Child
• Facilitating a Sexual Offence Against a Child
• Sexual Penetration of a Child or Lineal Descendent
• Sexual Penetration of a Stepchild
• Sexual Penetration of a Parent, Lineal Ancestor or Stepparent
• Sexual Penetration of a Sibling or Half-Sibling
• Sexual Offences Against People with Impaired Mental Functioning (Repealed 2016)
• Child in the Production of Child Abuse Material
• Distributing Child Abuse Material
• Administering a Website Used to Deal With Child Abuse Material
• Accessing Child Abuse Material
• Assisting a Person to Avoid Apprehension
• Sexual Assault of a Person with Cognitive Impairment or Mental Illness
• Using Force, Threat etc. to Cause Another Person to Provide Commercial Sexual Services
• Causing Another Person to Provide Commercial Sexual Services in Circumstances Involving Sexual Servitude
• Aggravated Sexual Servitude
• Deceptive Recruiting for Commercial Sexual Services
• Bestiality
• Child Stealing
• Bigamy
• Abortion Performed by Unqualified Person
• Concealing the Birth of a Child

What happens next?

If you have been charged with sexual assault by compelling sexual touching, your next step is to schedule an initial consultation with an expert at MK Law, where you’ll discuss your case in detail, allowing the lawyers to assess your situation and provide preliminary advice. They will then review the information, possibly request additional evidence or documentation, and tailor a defence strategy specific to your circumstances. MK Law will keep you updated throughout the process, offering legal advice and preparing you for any court appearances. If your case proceeds to court, MK Law will represent you, advocating for the best possible outcome. To start, simply reach out by phone on 1800 130 120 or through their website to arrange the consultation.

For more information on specific charges regarding sexual assault, see our other publications.