It has been reported that a 70-year old man will face Downing Centre Local Court on 7 August 2019 for allegedly committing a sexual act while travelling on a ferry from Manly to Circular Quay.
According to police, at around 7.30pm on Wednesday, 17 July 2019, a 47-year old woman witnessed the ‘a man seated close-by, smiling at her’. She then reported to a staff member that the man was engaged in a sexual act.
Police officers from the Transport Command met the ferry at Circular Quay, arrested the man, took him to The Rocks Police Station, charged him with the offence and granted him conditional police bail.
Details of the alleged sexual act’s nature have not been released.
‘Sexual act’ replaces ‘act of indecency’ in NSW
In December 2018, the offence of sexual act replaced ‘act of indecency’ in New South Wales.
The new offence is meant to better describe the conduct that is considered to be against the law when it comes to non-consensual acts towards other persons that do not involve touching but are nevertheless sexual in nature.
The offence of sexual act is considered to be less-serious than sexual touching, although it is still treated seriously by the courts.
The offence of sexual act in NSW
The section states that a defendant is guilty of a sexual act if he or she, without the consent of the complainant and knowing the complainant does not consent, intentionally:
- carries out a sexual act with or towards the complainant, or
- incites the complainant to carry out a sexual act with or towards the defendant, or
- incites a third person to carry out a sexual act with or towards the complainant, or
- incites the complainant to carry out a sexual act with or towards a third person.
What is the meaning of ‘sexual act’?
A ‘sexual act’ is defined by section 61HC as any act – other than sexual touching – which is carried out in circumstances where a reasonable person would consider it to be sexual.
The section provides that the matters to be taken into account when deciding if the act is sexual include whether:
- the area of the body involved in the act is the person’s genital area, anal area or – in the case of a female person, or a transgender or intersex person identifying as female – the person’s breasts, or
- the defendant’s actions are for sexual arousal or sexual gratification, or
- any other aspect of the act, or the circumstances surrounding the act, make it sexual.
An act is not considered to be sexual if it is done for genuine medical or hygienic purposes.
The definition makes it clear there does not need to be any touching for an act to be sexual.
Examples of sexual acts
Conduct which may constitute a sexual act includes:
- masturbating in front of the complainant,
- inciting the complainant to masturbate,
- carrying out a simulated sexual act, or
- inciting the complainant to carry out a simulated sexual act.
What are the penalties?
The maximum penalty for carrying out a sexual act is 18 months in prison.
The maximum penalty increases to two years if the offence was committed against a child who was at least 10 years of age but less than 16; see section 66DD.
The maximum is 7 years if the child was under the age of 10; see section 66DC.
It is important to bear in mind that these are maximums and the court can impose any of the following penalties for a sexual act:
- Section 10 Dismissal
- Conditional Release Order
- Community Correction Order
- Intensive Correction Order
However, and Intensive Correction Order is not available where the sexual act involved a person under the age of 16.
What is the prosecution required to prove?
For a defendant to be found guilty of a sexual act, the prosecution must establish each of the following elements of the offence:
- That the defendant carried out a sexual act towards the complainant, incited a third person to do so or incited the complainant to carry out a sexual act,
- That the defendant knew consent was not given, or was reckless as to whether consent was given.
The prosecution will fail if it is unable to prove each of these elements beyond a reasonable doubt.
What are the defences?
In addition to the requirement that the prosecution must prove each element of the offence, it must also disprove beyond reasonable doubt any of the following defences if properly raised: