Rape conviction quashed over ruling on asking girl (15) about taking pill

kylith · 22-06-2018 08:35AM #1

https://www.irishtimes.com/news/crime-and-law/courts/rape-conviction-quashed-over-ruling-on-asking-girl-15-about-taking-pill-1.3539045

A Co Louth man’s conviction for raping a 15-year-old family friend has been quashed over a ruling which prevented his lawyers from questioning the girl as to why she was on the contraceptive pill at the time.

This is the kind of sh!t that really annoys me. Not only are there medical reasons for being on the pill, prior sexual activity is not consent to sexual activity at all times. Having sexts on your phone is not consent to sexual activity.

They have as much as admitted that they want to undermine her credibility with this.

Some more depressing quotes..

the defence had sought to question the complainant on previous sexual history, particularly in respect of messages on her phone which carried sexual innuendo and at least one photo of a male penis. The purpose was to establish that she had been sexually active and had probably engaged in intercourse immediately prior to the alleged rape.

Completely irrelevant to whether or not she was raped.

The defence also sought to introduce evidence that would assist in establishing that the complainant was taking the pill not just for medical reasons but at least partly for contraceptive purposes in contemplation of such activity.

Completely irrelevant to whether or not she was raped.

There was, at least, a possibility that the jury might be persuaded that a primary or secondary motivation for taking the pill, and remaining on it, was to facilitate sexual intercourse and that such sexual activity as occurred in the course of her confrontation with the man “was not the first occasion on which she had engaged in sexual intercourse”.It was “an important credibility issue,” Mr Justice Mahon said.

Now, as the girl said she was a virgin prior to the encounter with the defendant whether or not she had had sex before could be an important credibility issue, in which case they should have sought proof that she had had sex previously, which being on the pill is not.

It just seems that the defense's entire case is 'sure, she was on the pill, and she had some saucy texts on her phone, so she's obviously a slut who was gagging for it'. I despair...

TheChizler · 22-06-2018 08:38AM

I think they were arguing that she was lying about one thing therefore wasn't credible? I still don't see the relevance though. They somehow managed to turn the trial around on her.

RockDesk · 22-06-2018 08:42AM

But are the solicitors saying they had consensual sex? Or that she had had consensual sex with someone else and this man didn't touch her?

Because if it's the first, why isn't it statutory rape, rather than consensual sex?

GingerLily · 22-06-2018 08:46AM

That's disgraceful - so many teenagers are on the pill before they're sexually active these days - I know in school several girls were, and that was 10 years ago.

Wibbs · 22-06-2018 08:53AM

the defence had sought to question the complainant on previous sexual history, particularly in respect of messages on her phone which carried sexual innuendo and at least one photo of a male penis.

What the actual fuck? "Sexual innuendo" and a photo of opposite sex tingly parts? On a teenagers phone? If that's their "logic" then every spotty teenager out there is shagging. Jesus Christ.

Glass fused light · 22-06-2018 09:10AM

TheChizler wrote: »

I think they were arguing that she was lying about one thing therefore wasn't credible? I still don't see the relevance though. They somehow managed to turn the trial around on her.

Its always about the credibility of the witness so the best defence is to turn the trial about on her.
From that report the then 20 year old defendent was not denying some sexual activity took place. but as there were 2 charges rape and defilement the argument maybe on the correct charge.
As it was with a 15 year old family friend the 'I did not know she was underage' defence won't work. She is under 17 so legally can't consent to sexual activity so being on the pill or even having sex with someone else is not a defence either.

*Being quashed would mean that the conviction no longer stands and the State would have to retry the case from the start so victim will have to retestify.

22-06-2018 09:13AM

Complete bull**** case. The fact that she was 15 and he in his 20s is surely enough without anything else ffs. His defence was that it was consensual. :rolleyes:

kylith · 22-06-2018 09:14AM

Glass fused light wrote: »

TheChizler wrote: »

I think they were arguing that she was lying about one thing therefore wasn't credible? I still don't see the relevance though. They somehow managed to turn the trial around on her.

Its always about the credibility of the witness so the best defence is to turn the trial about on her.
From that report the then 20 year old defendent was not denying some sexual activity took place. but as there were 2 charges rape and defilement the argument maybe on the correct charge.
As it was with a 15 year old family friend the 'I did not know she was underage' defence won't work. She is under 17 so legally can't consent to sexual activity so being on the pill or even having sex with someone else is not a defence either.

Whichever way you slice it, it was rape. His hope is to get it down to ‘just’ statutory rape, I suppose. Which doesn’t make him much less of a scumbag, IMO.

22-06-2018 09:17AM

The simple way to stop that sort of nonsense is to disallow any questioning of the complainants prior sexual history it is not relevant to the issue of whether they were raped.

Glass fused light · 22-06-2018 09:23AM

kylith wrote: »

Whichever way you slice it, it was rape. His hope is to get it down to ‘just’ statutory rape, I suppose. Which doesn’t make him much less of a scumbag, IMO.

I would say the argument is defilement not rape and the clinton defence that they were only messing around.

professore · 22-06-2018 09:55AM

I would say from long experience of reading newspaper articles that there is a lot more to this than the headline and even the content. Especially when you read about something you have deep personal knowledge of (not this case - something completely different !!! ) and the Irish Times article bore no relation whatsoever to the truth and was flat out biased and lying for most of the article.

Many young girls are on the pill for many reasons such as heavy periods etc. In countries such as the Netherlands parents put their daughters on the pill after puberty to prevent any chance of unwanted pregnancy. This doesn't mean that these young girls are "up for it" all the time with anyone. So to quash the case on that basis alone is an utter disgrace.

Also he is going to have to go through a retrial. Unfortunately so is the girl.

Assuming the defence is correct and she was involved immediately prior with another man - he should also be on called as a hostile witness, and if this guy is sent to jail he should also be tried and sent to jail if guilty.

Hector Bellend · 22-06-2018 10:03AM

If they had sex then surely the fact that she was underage renders consent irrelevant in this case.

One eyed Jack · 22-06-2018 10:20AM

kylith wrote: »

They have as much as admitted that they want to undermine her credibility with this.

They wouldn't be doing their job effectively if they weren't trying to undermine the witnesses credibility in defence of their client. It's depressing, but it's necessary.

Completely irrelevant to whether or not she was raped.
Completely irrelevant to whether or not she was raped.

It's relevant to the defence.

Now, as the girl said she was a virgin prior to the encounter with the defendant whether or not she had had sex before could be an important credibility issue, in which case they should have sought proof that she had had sex previously, which being on the pill is not.

It just seems that the defense's entire case is 'sure, she was on the pill, and she had some saucy texts on her phone, so she's obviously a slut who was gagging for it'. I despair...

The point of the appeal was that the defence were denied the opportunity to allow the jury to hear questions and answers which they consider relevant to their case in defence of their client, and that the jury should have been allowed to make the determination about the witnesses credibility.

Graces7 · 22-06-2018 10:32AM

This is what lawyers do and get paid for doing.
As Dickens said, "The is A ASS!" ie donkey

And is also amoral

Winning is what counts. not truth

kylith wrote: »

https://www.irishtimes.com/news/crime-and-law/courts/rape-conviction-quashed-over-ruling-on-asking-girl-15-about-taking-pill-1.3539045

This is the kind of sh!t that really annoys me. Not only are there medical reasons for being on the pill, prior sexual activity is not consent to sexual activity at all times. Having sexts on your phone is not consent to sexual activity.

They have as much as admitted that they want to undermine her credibility with this.

Some more depressing quotes..
Completely irrelevant to whether or not she was raped.
Completely irrelevant to whether or not she was raped.
Now, as the girl said she was a virgin prior to the encounter with the defendant whether or not she had had sex before could be an important credibility issue, in which case they should have sought proof that she had had sex previously, which being on the pill is not.

It just seems that the defense's entire case is 'sure, she was on the pill, and she had some saucy texts on her phone, so she's obviously a slut who was gagging for it'. I despair...

Peregrinus · 22-06-2018 10:49AM

I think the argument would be as follows:

1. He was convicted on the basis of evidence given by her.

2. Therefore, he should be entitled to challenge her credibility as a witness.

3. Therefore, if she has made a statement in the witness box ("I am a virgin") which he has reason to think may be false, he should be allowed to cross-examine her on that. Particularly if her false statement related to her own sexuality/sexual activity. Whether she was a virgin or not is irrelevant to the issue of whether she was raped, but it's relevant to the question of whether she's a reliable witness.

4. Therefore, if he wasn't allowed to cross-examine her as to credibility, his trial was unfair.

So the argument is not "she's sexually active, therefore you should not believe her". It's "if she lies about/is in denial about her past sexual activity, she's a less credible witness in relation to her sexual activity on this occasion too".

It may be, as others point out, that she was on the pill for reasons which had nothing to do with any sexual activity, but she wasn't given the opportunity to give that evidence. So we don't know.

Rockdesk asks about statutory rape. There is no such crime in Ireland. There is rape, sex with a person of any age, without their consent. And there are various offences involving sex with underage people, in which consent is not an issue - the conduct is an offence even if they consent enthusiastically. If you're charged with and tried for one offence, they can't end up convicting you of an entirely different offence. On the facts given the defendant seemingly could have been charged with one of the underage offences, but he wasn't.

kylith · 22-06-2018 10:53AM

One eyed Jack wrote: »

The point of the appeal was that the defence were denied the opportunity to allow the jury to hear questions and answers which they consider relevant to their case in defence of their client, and that the jury should have been allowed to make the determination about the witnesses credibility.

I really don’t see how whether or not she was on the pill is relevant, though. Yes, if she’s claiming she was a virgin then having had sex previously would speak as to her credibility, but the pill in no way proves that. She could have been on it for any number of reasons, including not wanting to be caught out if she decided to have sex in future.

Outlaw Pete · 22-06-2018 11:04AM

Don't see the issue here. It was a crucial part of the prosecution's case and cross examination wasn't allowed regarding it. In all likelihood the jury would not have been persuaded that she was on the pill for other purposes than the ones which were claimed but to not at least allow questions on the matter they prejudiced the defense.

As the judge added:

“It is a matter which ought properly to have been left to the jury for consideration.”

Guy:Incognito · 22-06-2018 11:09AM

mariaalice wrote: »

The simple way to stop that sort of nonsense is to disallow any questioning of the complainants prior sexual history it is not relevant to the issue of whether they were raped.

Depends on how prior it is. What if you're being accused of rape , that you didn't do, but the woman in question had sex with someone else within a short enough timeframe that physical signs from that could help convict you?

seamus · 22-06-2018 11:25AM

Deleted User wrote: »

Complete bull**** case. The fact that she was 15 and he in his 20s is surely enough without anything else ffs. His defence was that it was consensual. :rolleyes:

This.

If the defendant was 16/17, maybe even 18 then the "consensual" defence might be relevant.

But he was 21 FFS. She was 15. Consent is no defence.

Grayson · 22-06-2018 11:28AM

Wibbs wrote: »

What the actual fuck? "Sexual innuendo" and a photo of opposite sex tingly parts? On a teenagers phone? If that's their "logic" then every spotty teenager out there is shagging. Jesus Christ.

maybe we should consider banning carry on movies. After all the innuendo shows that you're gagging for it.

As a side note, my mum was a nurse and midwife. When my sister was a teenager she brought her to our GP and got her a prescription for the pill. My sister wasn't sexually active it was just my mum being prepared. Because sh1t happens and the only way to be certain is to be prepared.

Edit: I'll do the same if I ever have kids. and I might even consider doing something like this.

https://www.theguardian.com/lifeandstyle/2016/jan/23/why-i-put-400-condoms-in-the-kitchen-drawer-for-my-sons

Glass fused light · 22-06-2018 11:40AM

Peregrinus wrote: »

I think the argument would be as follows:

1. He was convicted on the basis of evidence given by her.

2. Therefore, he should be entitled to challenge her credibility as a witness.

3. Therefore, if she has made a statement in the witness box ("I am a virgin") which he has reason to think may be false, he should be allowed to cross-examine her on that. Particularly if her false statement related to her own sexuality/sexual activity. Whether she was a virgin or not is irrelevant to the issue of whether she was raped, but it's relevant to the question of whether she's a reliable witness.

4. Therefore, if he wasn't allowed to cross-examine her as to credibility, his trial was unfair.

So the argument is not "she's sexually active, therefore you should not believe her". It's "if she lies about/is in denial about her past sexual activity, she's a less credible witness in relation to her sexual activity on this occasion too".

It may be, as others point out, that she was on the pill for reasons which had nothing to do with any sexual activity, but she wasn't given the opportunity to give that evidence. So we don't know.

She was 15, her passed sexual history is not a defence, he was arguing consent to at least some sort of activity. she could have has sex in front of the jury with anyone and everyone and she would still have had no legal capacity to consent.

Peregrinus wrote: »

Rockdesk asks about statutory rape. There is no such crime in Ireland. There is rape, sex with a person female by a male of any age, without their her consent.

A 15 year old male or female can not consent as the laws prevent them from having capacity.
A only a female can be 'raped' if its a male its a sexual assault.
In the case of a minor the defendant cant rely on consent without arguing reasonable belief of being 17.

Peregrinus wrote: »

And there are various offences involving sex with underage people, in which consent is not an issue - the conduct is an offence even if they consent enthusiastically. If you're charged with and tried for one offence, they can't end up convicting you of an entirely different offence. On the facts given the defendant seemingly could have been charged with one of the underage offences, but he wasn't.

The report said the conviction was for rape and defilement.

22-06-2018 11:41AM

That's a very interesting breakdown peregrinus thanks for that.
I am surprised if the underage bit wasn't included by default in the original case

biko · 22-06-2018 11:41AM

No means No! *

* Ian Paisley

One eyed Jack · 22-06-2018 11:58AM

kylith wrote: »

I really don’t see how whether or not she was on the pill is relevant, though. Yes, if she’s claiming she was a virgin then having had sex previously would speak as to her credibility, but the pill in no way proves that. She could have been on it for any number of reasons, including not wanting to be caught out if she decided to have sex in future.

Of course she could have been on the pill for any number of reasons, but the point of the appeal was that the jury was never given an opportunity to hear what those reasons were and whether or not it was reasonable to assume she was either on the pill for medical reasons, or because she was sexually active, or both.

You know that the accused at all times maintains the presumption of innocence, and the alleged victim isn't on trial, so it's a question of acknowledging that the accused simply has the right to a fair trial, when the potential consequences of being found guilty can mean they end up doing jail time.

I'd say the same btw if the alleged victim were a 40 year old man, the defendant would still be entitled to a fair trial. That's why it's important for all parties concerned that justice is seen to be done the first time, rather than putting everyone through an even more lengthy appeal and retrial. I can understand why someone would want to do that though if they maintained that they were innocent.

jiltloop · 22-06-2018 12:13PM

mariaalice wrote: »

The simple way to stop that sort of nonsense is to disallow any questioning of the complainants prior sexual history it is not relevant to the issue of whether they were raped.

Absolutely, the law should be changed on this. Previous sexual history should have zero bearing on a rape case. The only thing that should matter is what happened at the time in question.

In fact as far as I understand, and I'm open to correction on this, there are strict rules around bringing up a defendants previous convictions in court.

One eyed Jack · 22-06-2018 12:18PM

jiltloop wrote: »

Absolutely, the law should be changed on this. Previous sexual history should have zero bearing on a rape case. The only thing that should matter is what happened at the time in question.

In fact as far as I understand, and I'm open to correction on this, there are strict rules around bringing up a defendants previous convictions in court.

No, you're right, it's called a section 3 application, and a witnesses previous sexual history can often have a bearing on the case, particularly in terms of their credibility as a witness.

Outlaw Pete · 22-06-2018 12:22PM

jiltloop wrote: »

Previous sexual history should have zero bearing on a rape case.

Depends on the context and what argument is it the defense is using the sexual history to further.

For example: if a woman says a man tied her up and raped her and he claims she asked him to tie her up and it was consensual. Then it's very much relevant to the case if they have evidence that she has asked other sexual partners to do similar. Doesn't mean the man didn't rape her of course but that again is something for the jury 's consideration. To not allow such evidence would be unfair. If nothing else, it puts their credibility into question, assuming of course this was something which they denied ever having partaken in.

jiltloop · 22-06-2018 12:31PM

Outlaw Pete wrote: »

Depends on the context and what argument is it the defense is using the sexual history to further.

For example: if a woman says a man tied her up and raped her and he claims she asked him to tie her up and it was consensual. Then it's very much relevant to the case if they have evidence that she has asked other sexual partners to do similar. Doesn't mean the man didn't rape her of course but that again is something for the jury 's consideration. To not allow such evidence would be unfair.

I think using the victim's sexual history against them to paint them as promiscuous is despicable and does not contribute to a fair trial, it also discourages victims of sexual assault from making a complaint so it's hugely damaging. Many women I've spoken to have said they wouldn't report a rape because of how trials are conducted in this respect. The victim inevitably suffers a further demeaning experience which I can understand is extremely daunting. This is wrong.

Of course we could make up several hypothetical scenarios were you could argue that this line of question may be necessary but the reality is that in most cases it's not relevant and is a weapon used callously by the defense.

Outlaw Pete · 22-06-2018 12:39PM

jiltloop wrote: »

I think using the victim's sexual history against them to paint them as promiscuous is despicable...

So do I. So do the courts.

Of course we could make up several hypothetical scenarios were you could argue that this line of question may be necessary but the reality is that in most cases it's not relevant and is a weapon used callously by the defense.

If the court found that the defense was only introducing such evidence to show that that the claimant was promiscuous, they would not allow it and so while I accept that once used to happen, it is now no longer the reality as you suggest.

jiltloop · 22-06-2018 12:42PM

Outlaw Pete wrote: »

So do I. So do the courts.

Not sure I understand the part in bold, if it's a common practice of the defense that would suggest otherwise since the courts allow it to happen.

jiltloop · 22-06-2018 12:43PM

I'm not sure if you edited your original post but I didn't see the second part when I was responding.

Rape conviction quashed over ruling on asking girl (15) about taking pill

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