This week, a court in County Cork heard the trial of a 27-year-old man accused of raping a 17-year-old girl. The case, which again came down to the issue of consent, centred around the girl’s willingness to engage with the man prior to the rape, rather than the rape itself.
The defendant’s counsel told the jury the pair had been spotted kissing during the night and, having left the venue, proceeded up a lane to have sex. The complainant’s counsel refuted the notion she went willingly, with her barrister, Senior Counsel Tom Creed, telling the jury: “A witness saw you with your hand to her throat.”
The case quickly drew parallels to a watershed rape trial in Northern Ireland from earlier this year that caught global attention when two Irish rugby players and their two friends were acquitted on all counts of sexual assault of a woman in her twenties. In the rugby rape trial, counsel for the defence was recorded on multiple occasions of badgering the alleged victim over her tone and delivery of evidence. In this week’s case, counsel was just short of saying the complainant was “asking for it” because of the underwear she was wearing. "You have to look at the way she was dressed,” Senior Counsel Elizabeth O’Connell, defending the accused, is quoted saying to the jury. “She was wearing a thong with a lace front.” This was the culmination of her defence, with her argument resting entirely on the alleged victim’s appearance and her earlier interactions with the defendant that evening.
The jury of eight men and four women delivered a unanimous not-guilty verdict after just 90 minutes.
In the end, it inevitably came down to how she was dressed. But, as many on social media have pointed out, this point is moot when it comes to general rape victims. Whether you’re wearing a burka, a bikini or a bin bag, you’re still likely to get raped in 2018. Lace thongs and underwear in general are but another layer to be disposed of before the act can take place, but are continually used by defending counsel to muddy the waters of consent. The implication here is: if the girl or woman wore anything other than Spanx on the night in question, surely she was looking for sex.
The implication here is: if the girl or woman wore anything other than Spanx on the night in question, surely she was looking for sex
In the wake of the trial and responding to O’Connell’s salacious statement, the head of the Rape Crisis Centre Ireland, Noeline Blackwell, responded with this: "All of these things are rape stereotypes that are used by defendants to plant a doubt in the minds of a jury, taking away from the law which is that sex without consent is a crime."
The sad fact is that, more often than not, rape cases come down to "he said, she said". Because of the intimate nature of the crime and lack of hard physical evidence, both prosecution and defence naturally end up attacking the character of those on the other side of the trial. It mostly comes down to who the jury believe more, and if in fact they understand the parameters of what consent really is.
In Irish law (not Northern Irish, under which the rugby rape trial was held), there has been an exception made for men who genuinely believe they are not raping a woman. This can only be explained in the most simplistic terms, as it is as utterly ridiculous as it sounds.
Under Irish law, if a man believes he is being given consent by a woman, he is not raping her.
This naturally allows for a whole host of (farcical) ways a rape trial can play out, and one in which this Cork trial hinged on. The defendant said he believed they went consensually to have sex in a wet mound of mud; the complainant said the sex was not in fact consensual at all and constituted rape.
It again raises the question of whether or not consent is a viable means for prosecution, as it’s so difficult to prove under what circumstances it was given, and when it was taken away. The most infuriating aspect of this case – the barrister’s lace thong justification for consent – was also the best and most glaring way for her to win. She said it because she knows how winnable rape cases can be when there’s an element of a sexy, naughty nature to the alleged victim that supersedes the predatory, creepy nature of the defendant. The world, it seems for centuries now, would rather believe in the existence of slutty women over the chilling reality of rapists.