On the weekend Parramatta Eels and New Zealand Rugby League star Dylan Brown made headlines when he was purportedly charged with five counts of sexual touching allegedly stemning from an incident at Sydney night hot spot the Golden Sheaf.
As the matter is before the Courts we won't speculate what may or may not have happened and will leave that to the media but what we will do is provide some more information and context to what exactly is the offence of "Sexual Touching" and further explore how the NRL intergrity unit may take a view of the charge with regards to their "no fault stand-down policy".
What is Sexual Touching?
Section 61KC of the Crimes Act was created in 2018 and makes it an offence for:
"Any person (the accussed person) who without the consent of another person (the complainant) and knowing that the complainant does not consent intentionally:
a) sexually touches the complainant, or
b) incites the complainant to sexually touch the accussed person, or
c) incites a third person to sexually touch the complainant, or
d) incites the complainant to sexually touch a third person,
is guilty of an offence. Maximun penalty: Imprisonment 5 years.
Whilst it is clear that you cannot sexually touch another without their consent, what constitutes sexual touching?
Section 61HB states that "Sexually touching" means 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 in circumstances where a reasonable person would consider the touching to be sexual.
Section 61HB goes on to state that a Court will take into account:
Whether the area of the body touched or doing the touching are the genitals area, anal area or breasts, regardless or whether the breasts are developed and regardless of the person's age or gender;
Whether the person doing the touching does so for the purpose of obtaining sexual arousal or sexual gratification, or
Whether any other aspect of the touching including the circumstances in which it is done makes it sexual.
As can be seen, the Court will take into account the entire facts and circumstances of the alleged touching and determine whether it was sexual in nature.
Generally if it is done for even for minor gratification it will be deemed to be an act of sexual touching. This would generally capture acts such as groping.
Will the NRL No Fault Stand Down Policy Apply?
The NRL no fault stand down policy for players that have been charged with criminal offences but are awaiting trial has generally applied to those who have been charged with offences carrying a maximun term of imprisonment of 11 years or more; although the NRL has always maintained a discretionary power to stand-down and have sought to wield that power particularly in circumstances where offences are committed against women.
In this case, the maximum term of imprisonment is 5 years, although Brown has been charged with 5 counts. The NRL could seek to run a strict interpretation and say that the threshold has been crossed even though it is likely that any sentence should Brown ever be found guilty would be served concurrently and cumulatively.
John Vizzone aka The Legal Guy is an experienced criminal and sports lawyer available for legal representation, advice, and opinion. Contact john.vizzone@Vrtlawyers.com.au or call 0416167690.
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