All of us are aware that touching someone sexually without permission is against the law and carries harsh penalties, but you may not realise that encouraging someone else to commit a sexual offence can also lead to criminal charges and potentially harsh penalties. Sexual incitement is an often-misunderstood charge, but it is one that seems to be increasing with the widespread use of technology, especially sexting and Internet chat rooms.
What is the legal definition of sexual incitement?
The term “incitement” can be defined as urging someone to do something, or rousing them to do something. In legal terms, incitement is not an offence unless the behaviour or act that is being incited is a criminal offence. Incitement can be used in a number of different legal contexts, including incitement to commit a sexual offence, incitement to commit violent offences, or incitement to commit racial vilification.
Incitement to commit a sexual offence is covered under section 80G of the NSW Crimes Act and applies to a person who has urged or encouraged another person to commit an unlawful sexual act. In order for a person to be found guilty of this charge, the prosecution needs to be able to show that they genuinely intended the offence to be committed. Even if it was not possible for the offence to have been committed, a person can still be found guilty of incitement.
Examples of sexual incitement cases
Sexual incitement can apply across a range of different situations. Earlier this year, a man in Riverstone was charged with sexual incitement after an undercover police officer posed as a woman with a 12-year-old daughter on an internet chat site. The man was arrested and charged with sexual incitement after he made plans to meet up with the woman at a hotel for the purpose of engaging in sexual activity with her daughter.
Last year, a man was arrested and charged with a number of sexual offences, including three charges of inciting a child under 10 to commit an indecent act after a teenager came forward with allegations that a family friend had sexually assaulted her on a number of occasions when she was between the ages of eight and 10.
The popularity of texting and in particular sexting – sending explicit messages and images via text – has led to a number of different cases where adults have been charged with sexual incitement after encouraging minors to send them sexual images. The first of these in Australia was in 2009, when an 18-year-old man was charged with inciting his 13-year-old girlfriend to send sexual images of herself to him via text.
Other cases have also been reported in the media where adults have asked minors to engage in sexual activity or provide sexual images to them.
Last year, a taxi driver in Perth was sentenced to two years’ imprisonment after asking three girls aged 12, 15 and 16 to provide him with sexual favours in exchange for their fare.
Asking a child to engage in sexual activity can be defined as incitement and can lead to harsh penalties, including imprisonment.
What does the prosecution need to prove?
To convict a person of incitement to sexual abuse, the prosecution needs to be able to demonstrate that the encouragement or urging took place, regardless of the outcome. Even if the incitement wasn’t successful and the sexual offence never took place, a person can still be found guilty of sexual incitement.
Importantly, however, the prosecution must prove beyond reasonable doubt that you actually intended for the illegal act to take place – it is not enough that you engaged in communications without that specific intention. For that reason, the whole of the circumstances surrounding the incident will be relevant, including the nature of the communications, the nature and responses of the other party or parties, any actions towards making it happen or otherwise, and so on. If there is a reasonable doubt that you had the relevant intention, you must be found not guilty.
If you are facing charges of sexual incitement, it’s important to seek the advice of criminal lawyers who are experienced in these types of cases. A suitably experienced lawyer will obtain all relevant materials and carefully dissect the prosecution case. They will also obtain any additional information from you and/or other sources. If you are innocent, they will work towards having the case withdrawn or thrown out of court so that you can get on with your life.