Joe Marler and the case of the arched eyebrow

8 March 2020

Props are well known for their fondness of the ‘dark arts’ of Rugby, but over the weekend (7 March 2020) the England prop Joe Marler went a step further.  The issue is perhaps best encapsulated in the interview of Alun Wyn Jones:
 

Reporter:

…there was an incident during a scuffle where you had a rather interesting approach from Joe Marler.  What are your thoughts on that?"

Alun Wyn Jones:

Can you specify?"

Reporter:

He appeared to be grabbing you by a central area."

Alun Wyn Jones:

Can you specify again?"

Reporter:

Genitalia"

Alun Wyn Jones:

Um, yeah, it’s interesting.  What would you do in that situation, Nick?"

Reporter:

I thought you did well not to react."

Alun Wyn Jones:

Well, 138 Tests for my country you know if I react I get a red card so it’s tough isn’t it?  Hopefully World Rugby will have a look at it.  Joe’s a good bloke, lots of stuff happen on a rugby field."

In short, Joe Marler has repeatedly grabbed Alun Wyn Jones’ genitals.  An inevitable response followed on social media with some going so far as to accuse Mr Marler of ‘sexual assault’.  But was it?

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?

Touching can be found to be sexual in one of two ways; would a reasonable person consider that:

  1. Whatever its circumstances or any person’s purpose in relation to it, it is because of its nature sexual, or
  2. 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.

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. 

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.

Further information

For further information on the issues raised in this blog post, please contact a member of our criminal litigation team.

About the author

Matthew is a senior associate in the Criminal Litigation department.  His experience encompasses cases involving general and white collar crime. Matthew has significant experience of advising clients during interviews under caution both following an arrest and during a voluntary attendance.  Matthew’s experience includes advising high profile individuals and advising in matters which attract significant media interest.  His experience enables him to provide his clients with early advice which they can rely upon throughout the life of their case.  His approach to cases means he is able to quickly grasp the details of the prosecution case and to advise accordingly.

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On March 9th 2020 Matthew Hardcastle commented:

The first test is for occasions where the nature of the activity is automatically (some books describe it as unambiguously) sexual and I don’t believe that this was. This isn’t to say that touching another’s genitals would always fall under the second test; it’s just my assessment of this particular incident.

On March 9th 2020 Nick Callaghan commented:

I fail to see how this is not a sexual assault.
Your suggestion that "we are very much in the territory of the second question" is quite absurd, given the criteria to be met by question one.
"Whatever its circumstances or any person’s purpose in relation to it, it is because of its nature sexual"
To my layman's eyes this translates to an unsolicited act of touching someone's genitals, irrespective of the setting, is indecent and sexual.
The issue is not Marler's intent. As professional sportsmen the workplace is the playing field. I cannot see any employer dismissing this behaviour under the guise of 'sportsmanship'. I believe that this would represent a dismissable offence.

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