Knickers in the court (or the dail) - how do we prove consent - how should we?

Thirdfox · 14-11-2018 02:18PM #1

Just after reading the news with Ruth Coppinger displaying the knickers in court and can see more than one side to this difficult question:

1. How relevant is someone's attire/undergarments to a rape accusation? I think most people would instinctively say very little - the issue here is about consent not dress sense.

2. How can the defence put up legal arguments against the accusation of no consent?

The second question is what I'm interested in - both from what is happening now (are defence lawyers using clothing/sexual history etc. to put doubt into jurors' minds as to how "easy" the accuser gives consent) and what people think should happen?

I've seen a statement that sounds good on the face of it - in that - "if you find yourself in a situation where you need to prove consent you're in trouble already". And I realise that currently under Irish law it is the prosecution that needs to prove a lack of consent - in which case could someone educate me as to why the defence would go with the tactic of displaying underwear? How does that influence the argument that no consent was present at that moment in time?

As a happily married person this question will probably never affect me personally, but I can see the difficulty in shifting the burden of proof onto either party in what is most often a private act without witnesses.

Considering the seriousness of both the alleged crime and the consequences for someone convicted of such a crime what do people think about the current developments in sexual assault/consent theory/legislation?

cobhguy28 · 14-11-2018 02:51PM

Thirdfox wrote: »

Just after reading the news with Ruth Coppinger displaying the knickers in court and can see more than one side to this difficult question:

1. How relevant is someone's attire/undergarments to a rape accusation? I think most people would instinctively say very little - the issue here is about consent not dress sense.

2. How can the defence put up legal arguments against the accusation of no consent?

The second question is what I'm interested in - both from what is happening now (are defence lawyers using clothing/sexual history etc. to put doubt into jurors' minds as to how "easy" the accuser gives consent) and what people think should happen?

It is not just about proving the accuser did not consent, it is also about proving that the defendant did not have a reasonable honestly held belief that she was consenting.

It is this honestly held belief that is the tricky part. This is where defenses try to bring stuff like past sexual history, what they were wearing, why did you go to that persons bedroom with them at 2 am all alone.

Non of that proves that the accuser had consented in anyway but it might sway a jury that the defendant had an honestly held belief she was consenting.

GM228 · 14-11-2018 03:36PM

cobhguy28 wrote: »

It is not just about proving the accuser did not consent, it is also about proving that the defendant did not have a reasonable honestly held belief that she was consenting.

The prosecution must prove the there was no consent and knowledge or reckless of such, but the defence however must rebut the prosecutions evidence regarding knowledge of, or recklessness as to a lack of consent to enable a successful defence on the grounds of an honest belief.

This is known as the "defence of honest belief".

In other words it is not for the prosecution to prove the accused didn't have an honest belief, rather they prove the accused had knowledge of, or was recklessn as to the lack of consent. It is then for the accused to prove (on the balance of probabilities) that they had an honest belief and rebut the mens rea element of the crime.

cobhguy28 · 14-11-2018 04:08PM

GM228 wrote: »

The prosecution must prove the there was no consent and knowledge or recklessness of such, but the defence however must rebut the prosecutions evidence regarding knowledge of, or recklessness as to a lack of consent to enable a successful defence on the grounds of an honest belief.

This is known as the "defence of honest belief".

In other words it is not for the prosecution to prove the accused didn't have an honest belief, rather they prove the accused had knowledge of, or was recklessness as to the lack of consent. It is then for the accused to prove (on the balance of probabilities) that they had an honest belief and rebut the mens rea element of the crime.

Maybe I could of phased it a bit better but wanted to keep the language a bit simpler so not to cause to much confusing about where the legal burden lies on different sides ect.

2.—(1) A man commits rape if—

(a) he has unlawful sexual intercourse with a woman who at the time of the intercourse does not consent to it, and

(b) at that time he knows that she does not consent to the intercourse or he is reckless as to whether she does or does not consent to it,

So if we look at (b) if the defendant has admitted having intercourse, they will be trying to sway the jury by showing how the had had a belief that the accuser had consented. It is a subjective belief and a jury might believed it and if they do they can acquit.

It is right to say that the accuser does not have to prove this belief to be false but off course the prosecutor is going to attack this belief to try discredit it, to prove in the mind of the jury that it is false.

cobhguy28 · 14-11-2018 04:23PM

Maybe we should have a third category in rape trials. Guilty, Not Guilty and where the defense of Honestly held belief is used you can have something like, Not Criminal responsible, which would acknowledge that they are not criminal responsible, but state that they did physically commit the Act of Rape.

Or even a statement from the Jury to say that we believe the Defendant, that they had a Honestly held belief and so we must acquit, but also we believe the accuser and acknowledge that they were raped.

Thirdfox · 14-11-2018 04:57PM

cobhguy28 wrote: »

Maybe we should have a third category in rape trials. Guilty, Not Guilty and where the defense of Honestly held belief is used you can have something like, Not Criminal responsible, which would acknowledge that they are not criminal responsible, but state that they did physically commit the Act of Rape.

Or even a statement from the Jury to say that we believe the Defendant, that they had a Honestly held belief and so we must acquit, but also we believe the accuser and acknowledge that they were raped.

But where would that leave the accused and the accuser?

1. For the accused a not guilty by way of honest belief (akin to an insanity defence for murder) would in all likelihood still destroy someone's career and life. Sexual crimes have a taint that even other prisoners etc. find despicable.

2. Where would this leave accusers who don't get a not guilty by way of honest belief/juror statement of belief in non-consent? Does that mean any accuser who doesn't get this statement is someone who the jury believes consented and is making a false claim?

I see merit in leaving an ambiguity and dealing only with the alleged crime - a person is guilty or not guilty. Adding extra facets to a finding may cause other problems for the two parties as stated above.

Thanks for pointing out the honest belief defence and why a defence counsel may employ dress etc. to imply am honestly held belief that someone may be consenting. It allowed me to recall the criminal case back in uni with the husband getting others to gang rape his wife because he convinced them that she was role-playing and actually enjoyed the act - to my recollection the defence of honest belief did not(?) work in their case?

sapper · 14-11-2018 05:21PM

I was on a jury a few years ago where we had to wrestle with this kind of scenario. We did believe the accuser in terms that she did not consent but we couldnt agree on whether the prosecution succeeded in proving that the defendant had a "guilty mind". The way I understood it (we asked a lot of questions) the jury is really assessing how good a job the prosecution has done in proving the presence of the guilty mind, but really they didnt try to address it all - so we couldnt really send a person down on that basis

Nermal · 14-11-2018 05:32PM

We should not try to prosecute what are effectively he said / she said cases at all. Without witnesses, CCTV or physical evidence this is what court descends to.

cobhguy28 · 14-11-2018 05:40PM

Thirdfox wrote: »

But where would that leave the accused and the accuser?

1. For the accused a not guilty by way of honest belief (akin to an insanity defence for murder) would in all likelihood still destroy someone's career and life. Sexual crimes have a taint that even other prisoners etc. find despicable.

Maybe the defendant should be anonymous unless they are found to be criminally Guilty.

Thirdfox wrote: »

2. Where would this leave accusers who don't get a not guilty by way of honest belief/juror statement of belief in non-consent? Does that mean any accuser who doesn't get this statement is someone who the jury believes consented and is making a false claim?

This is the perception now for a lot of people. That they are making it up or regretting it or cant remember or even been pressured into it.

Thirdfox · 14-11-2018 05:41PM

https://en.wikipedia.org/wiki/DPP_v_Morgan - that's the HoL "honest belief" case I was thinking of - the "kinky sex" husband/wife gang rape case.

GM228 · 15-11-2018 03:27PM

cobhguy28 wrote: »

So if we look at (b) if the defendant has admitted having intercourse, they will be trying to sway the jury by showing how the had had a belief that the accuser had consented. It is a subjective belief and a jury might believed it and if they do they can acquit.

It's a primarily subjective test, however, the jury judge what the accused claims as to be a mistaken belief against their view subjectively.

Also in light of a statutory definition of consent in the Criminal Law (Rape) (Amendment) Act 1990 (as amended by the Criminal Law (Sexual Offences) Act 2017) of "free and voluntary agreement" it is currently unclear if the test for honest belief can remain subjective or even be a possible defence in certain circumstances - something highlighted by the Law Reform Commission earlier this year due to consent now being defined in a positive sense.

cobhguy28 · 15-11-2018 04:50PM

GM228 wrote: »

It's a primarily subjective test, however, the jury judge what the accused claims as to be a mistaken belief against their view subjectively.

Also in light of a statutory definition of consent in the Criminal Law (Rape) (Amendment) Act 1990 (as amended by the Criminal Law (Sexual Offences) Act 2017) of "free and voluntary agreemen" it is currently unclear if the test for honest belief can remain subjective or even be a possible defence in certain circumstances - something highlighted by the Law Reform Commission earlier this year due to consent now being defined in a positive sense.

Its a very interesting paper, However I do not believe it will restrict the defense of honest belief by much. Not more than a normal Jury would of of anyway.

ISSUES PAPER
KNOWLEDGE OR BELIEF
CONCERNING CONSENT IN
RAPE LAW

https://www.lawreform.ie/_fileupload/Issues%20Papers/LRC%20IP%2015-2018%20Knowledge%20or%20Belief%20Concerning%20Consent%20in%20Rape%20Law.pdf

Knickers in the court (or the dail) - how do we prove consent - how should we?

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