In criminal law, incitement is the encouragement of another person to commit a crime. It is an offence at common law to incite or solicit another to commit a crime. Depending on the jurisdiction, some or all types of incitement may be illegal. Where illegal, it is known as an inchoate offense, where harm is intended but may or may not have actually occurred.
Incitement shares a common rationale with conspiracy and attempt in providing a means for society to intervene before a criminal act is completed. There is considerable overlap between the preliminary offences, particularly in circumstances where two or more individuals are involved in criminal activity. A future crime may exist only in the mind of one man until he incites another to commit that crime or they agree together to commit it. The offence of incitement also overlaps with secondary participation as the aider, abettor, counselor or procurer of a crime committed by the principal offender. However, an individual may only be convicted of secondary participation if the offence is actually committed. This is not necessary for the crime of incitement to be completed.
Nature of Incitement
The nature of incitement can be explained as follows:
First, the communication that constitutes the action of incitement might be made on a one-to-one basis. At the other extreme, it could be made to a multiplicity of individuals (in newspapers and other media outlets, or the internet). Indeed, the perpetration of mass crimes will typically require structures, whether of communication or of command, within which co-ordinated conduct is rendered possible. Recent history has shown this, tragically, to be true of genocide.
Second, the prevalence of multi-sided communications means that incitement is more likely than other facets of the criminal law to raise cross-border issues.
Third, the communication that is at the core of incitement could be ambiguous, thereby giving rise to problems in the construction of the language used.
Fourth, even where there is a settled core of meaning in the message, it may evoke different reactions from different people.
Fifth, outside the settled core of the criminal law, in areas where the imposition of liability may be the subject of public debate, the dissemination of the view that particular actions do not merit such liability may well be taken as expressing the opinion that there is a moral right to break that law pending its reform. This, in turn, creates a conflict between the law of incitement and freedom of speech.
Why Consider Incitement a Crime?
The reason for criminalizing incitement has the same justification as in cases of other inchoate offences like conspiracy or attempt: criminalizing incitement allows the police to intervene before a criminal act is completed and the harm or injury has actually occurred.
To be precise, the reasons for criminalizing incitement are prevention and deterrence. Even though it is widely accepted that it is difficult to hold a defendant accountable for an inchoate offence like incitement, the fact remains that criminalizing it will help in preventing the occurrence of the crime by deterring the inciter to get into such activities.
Actus Reus of Incitement
Incitement contemplates virtually every human means whereby one person seeks to influence another to the commission of a crime. It includes not only encouragement or persuasion, but can include a threatening act or other pressure. The offence is complete whether or not the incitement persuades another to commit or attempt to commit the offence. Incitement may be directed at an individual or at the world at large, as when a newspaper advertisement represents that an object's virtue is that it may be used to commit an offence. Incitement requires that there be actual communication, though where such incitement fails (for example where a letter conveying the
incitement is intercepted) then there is an attempt to incite.
The act incited must be an act which when done would be a crime by the person incited. Thus, in R v Whitehouse it was held not to be an offence of incitement to incite a girl of fifteen to have incestuous sexual intercourse because the girl would not have committed an offence if the incitement had succeeded and she had submitted to intercourse. If intercourse had followed with the inciter, the girl would not have committed an offence, nor the defendant be charged for incitement, but the "inciter" would be guilty of incestuous sexual intercourse with a girl under sixteen.
To elaborate, in R v Whitehouse, a father was charged with inciting his fifteen-year-old daughter to have sexual intercourse with him. At this age, she would have been excused from liability for committing the offence of incest with her father. Therefore, the conviction for incitement was rejected. Scarman LJ explained that:
"... we have therefore come to the conclusion, with regret, that the indictment does not disclose an offence known to the law because it cannot be a crime on the part of this girl aged 15 to have sexual intercourse with her father, though it is of course a crime and a very serious crime, on the part of the father. There is here incitement to a course of conduct, but that course of conduct cannot be treated as a crime by the girl. It is regrettable indeed that a man who importunes his daughter under the age of 16 to have sexual intercourse with him but does not go beyond incitement cannot be guilty of a crime."
Mens Rea of Incitement
The position as regards the mens rea for the offence of incitement is not wholly clear. Leading commentators suggest that the inciter must intend the consequences of the actus reus of the crime intended. Thus, if A incites B to commit grievous bodily harm upon C, he is not guilty of
incitement to murder. However, if death results from B's action, then both will be guilty of murder, B as the principal and A as the counselor and procurer. There is authority for the view that incitement requires an element of persuasion or pressure upon the person incited, which is probably not necessary where counseling or procuring a completed crime is alleged.
One aspect of the inciter's mens rea is the extent to which he wishes to promote the necessary mens rea in the incitee's mind. As mentioned above, if the inciter procures the assistance of an innocent agent, the agent may be guilty as the principal offender. If the inciter intends that the
incitee will act with the necessary criminal intent then he is clearly liable. It is also suggested that the inciter should be liable if he believes that his incitement will cause the incitee to act with the necessary guilty intent.
In R v Curr, the defendant allegedly incited a woman to commit offences under the Family Allowances Act 1945 of UK but, because the prosecution did not prove that the women had the mens rea to constitute the offence, the conviction was quashed.
Fenton Atkinson J explained that incitement could have occurred, "… if the woman solicited that, that is, the woman agent sent to collect the allowance, knew that the action she was asked to carry out amounted to an offence."
Provision Regarding Incitement in Nepal's Muluki Penal Code 2074
In clause 50 (1) of the Muluki Penal Code 2074 the provision states that no person shall, with the intention of overthrowing the Government of Nepal or the constitutional structure, create any kind of disorder by demonstrating or using military, paramilitary or criminal force or form an armed military or paramilitary organization or make conspiracy, attempt or incitement to commit such act.
Similarly 50(1) of the same Code states that no person shall, by words, either spoken or written or by figure or signs or otherwise, showing any baseless or unsubstantiated matter in relation to the Government of Nepal or any action of the Government of Nepal, bring or attempt to bring into hatred, enmity or contempt towards the Government of Nepal or cause the commission of such act.
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