Wednesday 18 September 2019

Nicola Anderson: 'Woman's choice of underwear is never difference between rape and consent'

Lawyer's use of 'lacy thong' worn by alleged victim (17) helped win acquittal of defendant in trial

Despair: No consideration is given to how shamed an alleged victim might feel in such sensitive circumstances. Stock photo
Despair: No consideration is given to how shamed an alleged victim might feel in such sensitive circumstances. Stock photo
Nicola Anderson

Nicola Anderson

Since when does your choice of underwear determine whether you were raped or if you actually consented to sex?

In 1995, a Yale university paper entitled 'Undressing the Victim' talked about how the clothing of a woman might be presented to a jury during a rape trial.

It argued that transporting clothing items from the scene of a rape to the conservative, "rigid" atmosphere of the courtroom distorted the meaning of almost all women's clothing, making them look "provocative" even if that wasn't the intention in the original setting.

"Any but the most modest outfit will appear deviant in court; and any panties or bra surely will inspire objectification," it pointed out.

This is exactly what we saw at a rape trial in Cork this week - where defence barrister Elizabeth O'Connell SC urged the jury to consider the lacy thong that the 17-year-old plaintiff had been wearing 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?" she asked. "You have to look at the way she was dressed. She was wearing a thong with a lace front."

Arguing for the prosecution, Tom Creed SC told the jury: "She is quite clear she did not consent. She said she never had sexual intercourse before."

The 27-year-old man at the centre of the trial was subsequently acquitted. The jury of eight men and four women reached their unanimous verdict after an hour-and-a-half of deliberation.

The story was picked up internationally - with even commuters in London perusing the lines with disbelief - though, more likely, with weary recognition.

Legal experts would argue that all such avenues are fair game for a defence lawyer to explore in search of a convincing argument on behalf of their client.

No loopholes are left unexplored - that's what they get paid to do.

There are no rules stopping them - and with studies showing that juries still cling stubbornly to so-called rape myths, you cannot really blame a lawyer for chancing their arm, however repugnant their tactics might seem in the cold light outside the courtroom.

It throws in an element of doubt, makes a jury begin to think in a certain way about something they may not have considered.

The humiliation of the alleged victim and how shamed they might feel under these sensitive circumstances is, on the other hand, not considered by anybody.

We saw the same approach at the Belfast rape trial this year, when the alleged victim's purple thong was gingerly shown to the jury by a court usher wearing latex gloves.

But why are thongs so contentious? The fashion for the skimpy pants exploded in the 1990s and they have not gone away since.

Yes, they can be distractingly uncomfortable, with frequent adjustments an unavoidable part of the deal.

But they are a rite of passage, part of the uniform of frivolous clothing necessary for a young woman's night out.

They carry no meaning in their own right. They are merely undergarments designed to be invisible.

While a lawyer might consider them to be conveniently 'provocative', from a young woman's stance, a thong is simply more functional than 'granny pants'.

For avoiding the dreaded 'visible panty line' under fashionably figure-hugging clothing, there is very little alternative.

As for finding a pair without a 'lace front'? Good luck on that particular shopping expedition.

It is now 23 years since that Yale paper but little seems to have changed in the thinking of courtroom lawyers, whose 17th-century stiff horsehair wigs and starched white bibs seem to encourage puritanical thinking, demanding a different standard of those of us living in the 21st century.

And, depressingly, it's not just lawyers who conflate clothing with being 'up for it'.

An EU barometer study released in 2016 asked over 1,000 Irish people "whether you needed consent to have sex if somebody was dressed provocatively" - with 9pc of people claiming you did not.

We are still having the same old, wearisome battle about a woman's right to wear what she chooses - and how that might be used as a weapon against her in certain circumstances.

But, really, knickers are just knickers.

No more, no less.

Irish Independent

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