On 6 November, the Irish Examiner reported on a rape trial involving a 17-year-old victim and a 27-year-old defendant. The accused did not deny the sexual encounter occurred, but he argued that it was consensual.
One of the last things the defendant’s barrister told the jury before they went to deliberate was: “You have to look at the way she was dressed. She was wearing a thong with a lace front.”
The defendant was acquitted. The jury only took an hour and a half to deliberate before delivering a verdict of not guilty.
The defence’s argument, that somehow a woman’s choice of underwear can amount to consent, sparked protests across Ireland, with demonstrators posting photos of their underwear with the hashtag #ThisIsNotConsent.
But to me, this wasn’t even the worse part. From a legal perspective, the comments made before the underwear remark were even more shocking.
Ms Elizabeth O’Connell SC for the defence instructed the jury to ask themselves: “Does the evidence out-rule the possibility that she was attracted to the defendant and was open to meeting someone and being with someone?”
Read that sentence over a few times. What this lawyer is saying is that unless the jury is convinced beyond a reasonable doubt both that the victim was not attracted to the defendant at any stage and that she was not open to “being with someone” - whether or not that someone was the defendant - they should return a not guilty verdict.
As shocking as it is, Ms O’Connell has the law on her side. Her comments lay bare a dangerous and insidious flaw in the criminal justice system when it comes to sexual assault law. The fact that her comments were lawful shows just how desperately the law needs to change.
In Ireland, a defendant must be acquitted of sexual assault if they can prove that they believed the victim was consenting.
This is a purely subjective test. If a jury is convinced that he believed she was consenting, he is not guilty of rape.
It does not matter that she insists in court, and at the time of the event, that she was not consenting.
If he believed her clothing spoke louder than her words then he gets off scot-free.
This problem is replicated in most jurisdictions around the world. In England and Wales, the law does not specify a definition of consent and juries are told to give the term its ordinary meaning, bearing in mind that there must be proof of the victim’s non-consent for any sexual offence to be made out.
By setting a subjective standard and requiring non-consent to be proven, the law allows defendants to rely on their own beliefs about consent, regardless of what these beliefs are based on.
As we have seen from the protests, it is safe to say that as a society we no longer accept the idea that a woman’s choice of clothing can give rise to consent. But it doesn’t matter what the world believes. It matters what the defendant believes.
The other consequence of a law structured in this way is that it sets consent as the norm and requires non-consent to be communicated. It means that, in the eyes of the law, by saying nothing the victim failed to communicate non-consent. And in turn, by failing to communicate non-consent, the victim consented. Needless to say, the concept is outdated and flies in the face of a woman’s right to autonomy over her intimate life.
It is also antithetical to the way our society views sexual assault in a post-#MeToo world and the law needs to change to reflect this. While this problem lies behind every rape trial, the Irish case puts it front and centre.
There have been moves across the world to reform sexual assault law to require proof of explicit consent, rather than an absence of non-consent. Reforms like this have been passed in some states in Australia: in Victoria, a defendant on trial for rape, if he wishes to rely on the defence that the encounter was consensual, must prove that consent was given freely, expressly, enthusiastically and specifically.
This means it must be vocalised and voluntary given. It must be specific to the sexual act and to the person involved. It must be a positive act of consent and not simply the absence of ‘no’.
It’s clear the law needs to change in England and Wales and around the world, to entrench the idea of enthusiastic consent. Until that happens, victims will continue to be let down by the criminal justice system.