Can Clothing be Used as Evidence of Consent in a Rape Trial?

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It is reported that an alleged rape victim’s intentions appear to have been judged on her underwear.

A 27-year old Irish man has been found not guilty for the charge of allegedly raping a 17-year-old woman in Ireland.

The Accused person’s lawyer referred to the alleged victim’s G-string’ in closing submissions- showing it in court, and said:

“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.”

After Irish Politician, MP Ruth Coppinger expressed strong views against this in Parliament (as she held up a lace G-string), many people protested in Dublin saying “clothes are not consent” as some waved G-strings on the streets.

This has instigated photo sharing of G-strings on social media in an attempt to protest against a perceived routine victim blaming in Irish courts with hashtag “#ThisIsNotConsent”.

In response to Ms. Copinger’s expressions in Parliament on this issue, Irish Prime Minister Leo Varadkar said, “Nobody asks to be raped and it’s never the victim’s fault. It doesn’t matter what you wear, where you went, who you went with, or what you took, whether it was drugs or alcohol… I believe any defence on those lines is absolutely reprehensible”.

While protestors are asking for a change in the Irish rape laws in an attempt to prohibit defence lawyers from the practice of suggesting victim blaming, Irelands Prime Minister has said that politicians can not interfere in how individual court cases are operate or run.

Ms. Coppinger also said that things like clothing, fake tans and contraception have been used in recent rape trials in Ireland for purposes of suggesting alleged proof of consent.

It appears that on the one hand there is a culture of placing significant pressure on women to be sexualised and present sexually, but on the other hand- that behaviour is punished by using it as evidence in sexual assault trials says Coppinger.

Susan Dillon, a member of the Facebook group “Mna NahEireann (Women of Ireland) said, “Irrespective of the other evidence… no item of complainant’s clothing implied consent. If a jury is representative of sample of the population, then it’s clear we have some work to do to dispel this archaic myth that clothing invites rape.”

Table Of Contents

The Law and Penalties for Rape Charges in NSW
What is Sexual Intercourse?
How to Prove that the Person Accused knew there Was no Consent in a Rape Case?
What are the Defences to a Rape Charge in NSW?

The Law and Penalties for Rape Charges in NSW

In NSW, very heavy penalty apply if anyone is guilty of having sexual intercourse without consent under section 61I of the Crimes Act 1900 (NSW). There is a maximum penalty of up to 14-years jail for this offence.

If this offence is committed on or after 1 February 2003, anyone guilty of this could also face a minimum period of at least 7-years as the standard non-parole period (minimum period of full-time prison before being eligible for release on parole).

The ‘standard non-parole period’ only applies as a guidepost to Judges when sentencing an offender if the offending conduct is assessed by the Judge as at the middle of the range of objective seriousness for offences of sexual assault.

When assessing the ‘objective seriousness’ of the offence, the Law requires a Judge to consider factors, such as how long the sexual assault went on for, the age and vulnerability of the victim, whether the offender knew the victim wasn’t consenting or whether the offender was reckless as to the issue of consent. There are many more factors a court will look into- which is why it is imperative to obtain the advice from experienced sexual assault lawyers in Sydney if facing these charges in NSW.

What is Sexual Intercourse?

Sexual intercourse occurs in any one or more of the following situations:

Penetration of the vagina or anus by any part of a body or object.
Where a penis (or any part of) is inserted inside a person’s mouth.
Oral stimulation of the genitals (‘cunnilingus’) i.e. licking or sucking a penis or vagina.

A person will be guilty of having sexual intercourse without consent if the police prove each of the following 3 elements beyond reasonable doubt (in court):

The person accused had ‘sexual intercourse’ with the other person (‘complainant’); and
The complainant did not consent to it; and
The person accused knew that the complainant did not consent to it.

If any one of the above elements is not established by the police with enough evidence, the person accused of this charge will be found not guilty- and the charge will be dismissed.

How to Prove that the Person Accused knew there Was no Consent in a Rape Case?

A person accused of rape who is faced with this charge will be considered by the law to have had the knowledge that the complainant did not consent to the sexual intercourse- if any one of the following scenarios apply:

The person accused was reckless in any one of the following ways:
- He/she was having sexual intercourse not caring whether the complainant was consenting; or
- He/she considered the issue of consent as irrelevant while having sexual intercourse; or
- He/she although turned his/her mind as to the possibility that the complainant was not consenting, yet continued having sexual intercourse anyway.
The person accused had the knowledge that the complainant was not consenting while having sexual intercourse; or
The person accused raises the defence of honestly believing that the complainant was consenting during the sexual intercourse. Once this defence is raised, the accused person will be considered to have known that there was no consent if the belief that the complainant was consenting was not held on reasonable grounds.

For more details, see our previous blog on the circumstances that you can still be guilty of rape if the victim gives consent.

What are the Defences to a Rape Charge in NSW?

For sexual assault charges involving adults in NSW, a person charged with sexual intercourse without consent will ultimately get a not guilty verdict if any of the following defences apply:

The person accused honestly believed that the complainant consented during the sexual intercourse. This defence will only succeed if, once raised in evidence, there is reasonable grounds for the accused person to have held that belief at the time of having sexual intercourse.
The person accused did not have any ‘sexual intercourse’ with the complainant. Sometimes DNA evidence can shed more light on this point. For example, where the alleged incident occurred only minutes before the police arrived to then obtain DNA evidence without the suspect and complainant having a shower- the absence of any DNA linking the accused person to the complainant can greatly strengthen the defence case.
The complainant consented to the sexual intercourse at the time it occurred. The circumstances of the conduct can shed further light on this issue.

Even where sexual intercourse did not occur, you will still face the same maximum penalties if there was an attempt to have sexual intercourse but failed (in circumstances there was no consent and you knew that there was no consent at the time).

There are other kinds of rape charges, such as aggravated sexual assault charges and aggravated sexual assault in company that attract even heavier penalties.

Any questions from this blog?

Our team are available 24/7 and provide a free first consultation with a specialist criminal defence lawyer in Sydney, Penrith, Wollongong, Newcastle and 5 other office locations in NSW.

Published on 22/11/2018