The Chief Executive of the Dublin Rape Crisis Centre has urged that there must be legal reforms in how rape trials are conducted, after a court heard details of a 17-year-old’s thong.
Rape trials regularly hear details of what the alleged victim was wearing, said Noeline Blackwell. She was commenting after a jury was asked to consider the fact that a 17-year-old girl was wearing a lacy thong earlier this week.
On Tuesday, a 27-year-old man who had denied raping the 17-year-old in county Cork was found not guilty by a jury at the Central Criminal Court in Cork.
In her closing address to the jury, Ms Elizabeth O’Connell SC told jurors they should have regard for the underwear the complainant wore on the night. “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.”
Ms Blackwell is urging that there must be reforms and clearer directions at trial level around issues such as clothing, as she said that rape “stereotypes” continue to come up in trials here.
“It comes up very, very regularly how someone was dressed, the amount of drink they had taken, why they hadn’t screamed if they were in trouble.
"These kind of mythologies and stereotypes around rape come up again and again in court cases, because the defence to rape is that the sex was consensual. So anything the defendant can do to suggest there was consent will be used,” she said.
The fact that the teenage girl’s underwear was raised in this trial did not come as a surprise to the Dublin Rape Crisis Centre, as this happens regularly, she said.
A previous EU barometer study released in November 2016 had asked over 1,000 Irish people “whether you needed consent to have sex if somebody was dressed provocatively and 9pc of Irish people said you did not.”
“These myths obviously come into the court room as well,” said Ms Blackwell.
“And these are the things that can put a doubt in the mind of a jury and if you can put a doubt in the mind of a jury the defendant will be acquitted.
“I am not saying for one moment that this jury was convinced or that the acquittal wasn’t perfectly proper, but that these rape myths are introduced into court is not a surprise at all.”
Ms Blackwell said in contrast, in England and Wales, there is a formal model which can be used for Judges to give direction “if this kind of stereotype is introduced.”
“So they will be asked to say something like ‘you have heard evidence of how the complainant was dressed. That is not the question. The question is was she consenting to sex at the time.’ So we don’t have those formal directions. I don’t know what directions were given in this case because it wasn’t reported.”
She said that there is room to clarify the kind of directions that Judges can give, similar to the English and Welsh system.
Meanwhile, the chair of the National Women’s Council of Ireland said using the underwear worn by a rape complainant in trials as a defence is "not acceptable",
Grace O’Malley Dunlop said that: "rape is rape, and no victim of rape or sexual assault brings it upon themselves. It is an act of violence and it is nothing to do with sex."
Ms O’Malley Dunlop said that training in the courts for people who are dealing with these kinds of cases is really important.
"I would like to see training for everybody in the court process. I would like to see special courts for victims of rape and sexual violence where you have judges and barristers who are specifically trained in this whole area, and who are dealing just with the law around it," said the Fine Gael election candidate for Dublin South West.
An attempt has been made to reach Ms O’Connell for comment.
Meanwhile, legal sources said that in such cases it is entirely legitimate for a barrister to refer to clothing, as an individual accused of rape is entitled to the presumption of innocence and a robust defence, and there are no rules around this issue.
Last August, Justice Minister Charlie Flanagan appointed lecturer in law at NUI Galway Tom O’Malley to examine all aspects of sexual assault trials.
The Law Reform Commission is also conducting an examination of Ireland’s legislation in the area of rape.