Legal precedent set by thong rape case.

s7ryf3925pivug

Technically, could this result in a legal precedent wrt basing defence against rape charges on the victim's clothing?

Peregrinus

Layne Melted Nitwit wrote: »

Technically, could this result in a legal precedent wrt basing defence against rape charges on the victim's clothing?

Short answer: No.

Longer answer: This was a jury trial. Jury trials don't set precedents.

Still longer answer: The newspaper reports mention that counsel for the defendant made this particular point about underwear, but we don't know what other points she made. We don't know what evidence was led by the prosecution. We don't know what points the prosecution made in the submission to the jury. We don't know what directions the judge gave the jury. We don't know why the jury gave the verdict that they gave. We don't know what weight, if any at all, they attached to the defence counsel's point about the underwear. The point may have had absolutely zero to do with the verdict.

Because of the jury system, precedents are generally only set in criminal matters when a case goes to appeal. Suppose, instead of what actually happened, the case had unfolded like this:

1. Defence counsel makes point about lacy underwear.

2. Judge directs jury that point is irrelevant, they must disregard it.

3. Jury convicts defendant.

4. Defendant appeals conviction. Ground for appeal, or one of the grounds, is that judge misdirected jury when telling them to disregard point about underwear; that this was a proper consideration for the jury and they should have been allowed to evaluate it.

If that sequence of events had unfolded, then we'd get a judgment from the Court of Appeal, which might hold (a) the judge was quite right to tell the jury to disregard the underwear point, or alternatively (b) that he was wrong (or (c), the Court of Appeal might set aside the conviction for other reasons, and not find it necessary to say anything about the underwear issue). We might then have an authoritative ruling from a court about whether or when the complainant's choice of underwear could ever be at all relevant in a rape trial.

But none of that happened, so we have no ruling from the Court of Appeal.

For what it's worth, there is guidance in the English courts on this issue, which is basically (a) the defence can put points to the jury dealing with the complainant's clothing, but (b) if they do, the trial judge must direct the jury that the issue they need to consider is not what the complainant wore but whether the complainant consented and, if she did not, whether the defendant could honestly have believed that the complainant consented. And, because defence counsel know that this is what will happen if they make points about the complainant's clothing, they very rarely make points about the complainant's clothing.

s7ryf3925pivug

Thanks, really clear and comprehensive answer.

The second point is especially interesting. I sat on a jury where the idea that a legal precedent could be set was the explicit rationale for the verdict. A well known, now deceased, gangster was on trial. The witnesses for the prosecution appeared scared and took back their initial statements. The prosecutor was given permission to treat them as hostile witnesses. Their reasons for giving the original statements were not believable, neither was the alternative narrative that was presented. I thought he was clearly guilty. It became 11 to one though so I gave up on the Friday afternoon. The consensus was he was guilty but what if a legal precedent was set where witnesses retracting statements could be ignored. I think it was an excuse and some of the jurors were scared too.

sexmag

Peregrinus wrote: »

Still longer answer: The newspaper reports mention that counsel for the defendant made this particular point about underwear, but we don't know what other points she made. We don't know what evidence was led by the prosecution. We don't know what points the prosecution made in the submission to the jury. We don't know what directions the judge gave the jury. We don't know why the jury gave the verdict that they gave. We don't know what weight, if any at all, they attached to the defence counsel's point about the underwear. The point may have had absolutely zero to do with the verdict..

Just to throw something in.

I was speaking to my solicitor recently and through out our chat this topic came up, I asked them in what way could showing a girls underwear really have bearing on the case.

The told me that what could happen is to discredit the plaintiff they could make a point that on a day to day basis the plaintiff did not wear this type of clothing,usually underpants would have been worn and the fact the she was wearing them could imply that she had the INTENTION of taking her clothes off and have intercourse with this man (a point I'll make before anyone charges at me is,INTENTION is not CONSENT.)

This singular change in the plaintiff on the night in question could imply she intended to be with the defendant and as such consent was more than likely given.

A jury hearing this would ultimately be unable to say without doubt that consent was or was not given or intended to be given and as such leave the solicitors client with an acquittal.

Not an easy case for any side or jurors to be part off but that's the info I was given and seems plausable.

As for precedents no I don't think it will,underwear has been used before and will be done again.

*Disclaimer* what a woman wears doesn't imply consent or she intends to have sex and even if consent is given it can be withdrawn