The author of this article is a barrister with many years of experience.
Back on 5th November 2018, in a rape trial in Cork, the trial’s defence counsel in her closing speech to the jury used the following words:
“Does the evidence out rule the possibility that she was attracted to the defendant and was open to meeting someone and being with someone? You have to look at the way she was dressed. She was wearing a thong with a lace front.”
Nine days later an angry crowd stood outside the very same courthouse, indeed while other criminal trials were still in progress within, to protest at the aforesaid words. The protestors explained that in fact what defence counsel had meant was that by wearing a thong the complainant had been “asking for it.” Their interpretation is to say that the accused could reasonably have assumed that she wanted to have sex and, even if she did not, it was her own fault for dressing in such a way.
However, there is a fundamental problem with this interpretation insofar as the actual words used clearly refer to the complainant’s state of mind, not the accused’s. The jury were asked to consider whether her clothing was consistent with her being open to the possibility of being with someone sexually. They were not asked to consider whether the accused was reasonably entitled to assume consent by virtue thereof. This is abundantly clear from the words themselves.
Furthermore, in the broader context of the full trial, media reports make it quite clear that the accused’s defence at all times was that the complainant had consented to sexual activity; not that he had reasonable grounds for believing that she did, when in fact she did not.
What’s more, it was not even the first time that year that a complainant’s appearance arose in such circumstances, though in the earlier instance it did not lead to street protests. In the even more high profile Belfast Rape Trial – involving a woman who alleged that she had been raped by two Irish rugby players, Paddy Jackson and Stuart Olding – the complainant testified that she had texted a friend the morning after the alleged rape as follows:
“Like I hadn’t even shaved my legs. Had only tanned the bottom of them and my arms. I wasn’t up or ready for f**king anything.”
There was no protest at this testimony. No one took to the streets chanting that a complainant’s appearance should never be considered by a jury in the context of a rape trial.
And why would they? What reasonable person could take issue with what the complainant had said? The understanding being that people frequently take steps to enhance their physical appearance and thereby their sexual attractiveness is innate.
However, if we as a society are to take our guide from the organised street protests, then a complainant may refer to her appearance as being consistent with an absence of desire on her part to have sex, but an accused may not. That is a grotesque and fundamentally unfair double-standard.
Unfortunately the apparent double-standards of protest do not end there, however. In the aftermath of the Belfast verdict of ‘not guilty,’ the catch-cry of a great many protestors was: “We believe her,” a phrase borrowed from similar protests in other countries. The reference to ‘her’ was of course a reference to the female complainant; but what of the other crucial female witness in the case?
Dara Florence testified that while looking for a friend, she entered the bedroom and there was nothing about what she saw to indicate a lack of consent on the part of the complainant.
Why should the female complainant be believed, but not the independent female witness? Perhaps rather than valuing the testimony of one person over another, the better conclusion to be drawn might be that the jurors heard the evidence and arrived at a verdict they believed was correct and lawful.
Returning to the Cork Rape Trial, apart from the protestors, it was also chilling to listen to politicians, journalists and even some academic lawyers discussing it in the context of alleged ‘victim blaming.’ It is important to be crystal clear about this: in the context of a criminal trial there is no ‘victim’ unless and until a guilty verdict has been returned by the jury; until then there is a ‘complainant.’
Every person is presumed to be innocent until proven guilty beyond a reasonable doubt and not only every lawyer, but every citizen in a free country based on the rule of law, should cherish and defend that principle openly and unapologetically, regardless of the alleged offence in question or the identity of the complainant.
Finally, the protest in the aftermath of both the Cork and Belfast Rape Trials, based as they were on faulty and inconsistent premises, represent not only a danger to the rights of accused to a fair trial, but also to women who are the victims of sex crime.
If a woman genuinely believes that she won’t be believed (Belfast) or that her appearance will be ruthlessly exploited against her (Cork) then there is a danger that she will conclude, not illogically, that there is no point in making a complaint to begin with. This could not be further from the truth. And at the end of the day isn’t that what everyone should want? The Truth.