Joe Marler grabbing Alun Wyn Jones' genitals on Saturday is not sexual assault, according to a criminal lawyer.
In a blog post published by Matthew Hardcastle, who is a senior associate in the Criminal Litigation department for Kingsley Napley believes the incident during the Six Nations clash at Twickenham isn’t a matter which should require any police attention.
In the blog post, he explains that the key fact is whether the context of the incident was sexual.
He said: "A sexual assault occurs when person (A) intentionally touches another person (B); the touching is sexual; B does not consent to the touching; and A does not reasonably believe that B consents.
"Touching, for these purposes, can occur over clothing.
"Here, we have what appears to be the intentional touching of another’s genitals and it is clear that Mr Wyn Jones did not consent.
"It is also clear that Mr Marler did not believe that Mr Wyn Jones was consenting – this can be seen both from Mr Wyn Jones’ reaction during the event and from the overall demeanour of Mr Marler who appears to be intending to prompt a reaction from the opposing team’s captain.
"Therefore, the primary issue, in a criminal law context, is whether the touching was sexual?
Mr Hardcastle says touching can be found to be sexual in one of two ways.
- Whatever its circumstances or any person’s purpose in relation to it, it is because of its nature sexual, or
- Because of its nature it may be sexual and because of its circumstances or the purpose of any person in relation to it (or both) it is sexual.
He added: "Here, we are very much in the territory of the second question. The touching of another’s genitals clearly may be sexual and so the answer to the question will fall almost entirely on the circumstances or purpose of the touching."
A scuffle between opposing seasoned internationals, in the middle of a Test match in front of around 82,000 people may be many things, but those circumstances are unlikely to be sexual.
"It is far more likely that Mr Marler’s intention was to provoke a reaction from Mr Wyn Jones that could favour England. This would appear to be Mr Wyn Jones’ interpretation as well."
Former World Cup referee Jonathan Kaplan believes that Joe Marler should have been yellow-carded for the incident and Wales captain Alun Wyn Jones has called for World Rugby to act .
The incident has provoked plenty of debate over how serious the incident should be taken.
Hardcastle admits in his blog post that the response on social media was predictable.
He added: "The social media response was predictable and perhaps understandable, but this isn’t a matter which should require any police attention.
"That said, Mr Marler may not be getting away sanction free as World Rugby law 9.27 prohibits the grabbing, squeezing or twisting of genitals and a ban may yet follow."
