The Offence of Inciting a Person to Sexually Touch Another Without Consent

High-profile rugby union player Kurtley Beale is facing several charges relating to sexual offences arising from an incident that allegedly occurred in Sydney’s eastern suburbs late last year.

Although details of the alleged offence are sparse, it has been reported that the 34-year old footballer, who played in more than 90 matches for the Australian Wallabies over the span of a decade, is alleged to have sexually assaulted a 28-year old woman at a Bondi pub on 17 December 2022.

Amongst the four of the charges laid against the former Waratahs player is the lesser-known offence of “inciting another to sexually touch without consent”. The other three charges comprise two counts of sexual touching without consent and the significantly more serious offence of sexual intercourse without consent, which is also known as ‘sexual assault’.

What is inciting another to sexually touch?

The offence of inciting another to sexually touch is a form of “sexual touching”, which is an offence outlined in section 61KC of the Crimes Act 1900 (NSW) (hereafter “the Act”).

The offence of sexual touching encompasses a broad range of behaviours done intentionally, without the consent of the complainant (the alleged victim) with knowledge that the complainant was not consenting, including where a person:

• sexually touches the complainant, or
• incites the complainant to sexually touch the accused, or
• incites a third person to sexually touch the complainant, or
• incites the complainant to sexually touch a third person.

The maximum penalty for the offence is five years imprisonment.

“Sexual touching” is broadly defined as including touching another person with any part of the body or through anything, including clothing in circumstances where a reasonable person would consider it to be sexual.

Matters that are taken into account in determining whether or not touching is “sexual” include the area of the body touched (genitals, breasts, anal area), whether the person is doing the touching for sexual gratification and any other aspect of the touching.

What counts as “incites”?

“Incites” is not defined under the Act but has been clarified in in a number of cases.

Smart AJ in R v Eade [2002] NSWCCA 257 proivded an overview of some of the clarifications given to the word “incite”:

In Young v Cassells (1914) 33 NZLR 852 Stout CJ…said: “The word ‘incite’ means to rouse; to stimulate; to urge or spur on; to stir up; to animate.” In R v Massie [1999] VR 542 at 564, Brooking JA, with whom Winneke P and Batt JA agreed, said of ‘incite’, “common forms of behaviour covered by the word are ‘command’, ‘request’, ‘propose’, ‘advise’, ‘encourage’, or ‘authorise’”.

The incitement (or “encouragement”) must be for the offence of sexual touching and not some other purpose. It will also need to be proven that the accused intended to incite another person to do the sexual touching.

Sexual consent

Consent for sexual touching is the same as for sexual intercourse.

Section 61HI of the Act defines consent as when a person “freely and voluntarily agrees to sexual activity”. Consent can be withdrawn at any time. 

Section 61HJ makes clear there is no consent where the alleged victim:

• Does not say or do anything to communicate consent.
• Lacks capacity to consent.
• Is so affected by alcohol or another drug to be incapable of consenting.
• Is unconscious or asleep.

Consent is also absent where a person participates in sexual activity due to:

• Force, fear of force or fear of serious harm.
• Coercion, blackmail or intimidation.
• Fraudulent inducement.
• They are unlawfully detained.
• They are overborne by the abuse of a relationship of authority, trust or dependence.
• They are mistaken about the nature or purpose of the sexual activity.
• They are mistaken about the identity of the person of they are married to the person.

Knowledge of non-consent

Knowledge on behalf of the accused of the complainant’s lack of consent, can be both actual knowledge and “constructed” knowledge given certain circumstances.  

Section 61HK of the Crimes Act 1900 (NSW) states that a person is taken to know that another person does not consent if:

• the accused person actually knows the other person does not consent to the sexual activity, or
• the accused person is reckless as to whether the other person consents to the sexual activity, or
• any belief that the accused person has, or may have, that the other person consents to the sexual activity is not reasonable in the circumstances.

A belief of consent will not be “reasonable” if the accused person did not, within a reasonable time before or at the time of the sexual activity, say or do anything to find out whether the other person consents to the sexual activity.

Accused of a sexual offence?

If you or a loved-one has been charged with a sexual offence, call Sydney Criminal Lawyers now to arrange a conference with an experienced defence lawyer who will advise of the options available and the best way forward, and fight for the optimal outcome.