Tuesday 11 December 2018

Judges should instruct rape case juries to disregard evidence proposing clothing suggests consent - Noeline Blackwell

Protest: Women express their views about the rape case in O’Connell Street, Dublin. Photo: Barbara Lindberg
Protest: Women express their views about the rape case in O’Connell Street, Dublin. Photo: Barbara Lindberg
Action: Ruth Coppinger holds up a thong in the Dáil chamber as she urges Government to stop ‘rape myths’ being used in court
Luke Byrne

Luke Byrne

Judges should be required to instruct rape case juries to disregard all evidence they hear from defence lawyers proposing an alleged victim’s clothing suggests consent, the director of the Rape Crisis Centre has said.

It comes after Mr Flanagan said he hoped protocols could be introduced for lawyers surrounding the introduction of clothing evidence in such trials.

“Without a doubt it is a normal part of any sexual assault case to introduce a range of issues such as the victim’s clothing, suggesting it as evidence of consent,” Noeline Blackwell said.

“That does need to be challenged.”

Ms Blackwell, director of the centre and a lawyer, preferred the introduction of ‘practice directions’ for judges.

“This would require a judge to say at the end of the trial when charging the jury to come up with a verdict ‘you have heard evidence about clothing, you are to disregard this evidence because it is not relevant to the charge’.

“This way, lawyers would eventually stop trying to introduce the issue of clothing as evidence of consent.”

Practice directions are rules judges must follow in presiding over a case and if they are broken, could leave any verdict open to challenge on the basis a jury was incorrectly instructed.

Ms Blackwell said this would still allow defence barristers to raise the issue in a court and not leave it open to accusations of an unfair trial.

“It’s important to remember that the victim in such cases, because they are not represented, require special protection from the judge,” she said.

Ms Blackwell said there was a similar requirement in the UK, within the Crown Court Compendium, which judges there follow.

Speaking on RTÉ’s Claire Byrne Live, Mr Flanagan responded to controversy which has raged since a senior counsel told a Cork Circuit Court jury they had to consider an alleged rape victim’s underwear.

The justice minister said he didn’t feel there were any circumstances where reference on the part of the defence counsel to the style, or clothing, that a woman at any time wears is acceptable.

“What we see in a criminal court case… is often times a full-blooded defence, where under our criminal law code a person is innocent until proven guilty, and often times the defence counsel will use whatever means are available and I don’t think that’s acceptable.

“And I do believe this will form part of the review that’s being undertaken and I would hope that we could introduce protocols for lawyers and indeed for everybody involved in the courts system,” he said.

Executive Director of the Irish Council for Civil Liberties, Liam Herrick, also backed the minister’s comments.

He said one of most important aspects of victims of crime law is that courts may give directions about evidence concerning a victim's private life in order to prevent re-traumatising the victim of sexual offences “where the admission of that evidence is not required by the principles of justice."

“The use of certain types of clothing as persuasive evidence of consent is extremely problematic and feeds into a wider context of pervasive rape myths and stereotypes, which extend not only to the clothing a victim was wearing but their sexual history and their drug or alcohol consumption,” he said.

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