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Ruth Coppinger holds up thong in Dail

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    #1682
    AndrewJRenko
    Registered Users Posts: 28,542 ✭✭✭✭AndrewJRenko


    One eyed Jack wrote: »
    AndrewJRenko wrote: »
    Except that she said nothing about 'honest belief' at that time. She linked the choice of a thong to consent to sex.

    Your imagination is running amok here. Look again at the words she said.


    It’s not my imagination is running amok at all. I’m well aware of the law on the issue, and I’m well aware as to why the barrister said what she said. She was speaking in the context of whether the defendant, whom she was representing, could have been of the honest and reasonable belief that the encounter was consensual. In case you’re not aware of what I’m referring to, here’s another example -

    The jury in the trial of a man accused of raping his former partner after kidnapping her has been told that an honest, though unreasonable, belief that the woman was consenting to sex was a defence to rape.

    Ms Justice Carmel Stewart referred the jury to a recent Supreme Court decision in which Mr Justice Charlton stated that “the absence of consent to sexual intercourse is an objective fact”.

    “The accused’s view as to the existence, or non-existence, of this fact is subjective. An honest, though unreasonable, mistake that the woman was consenting is a defence to rape,” she said, quoting from the Supreme Court judgment.

    “Any such alleged belief in consent must be genuinely held. Self-deceit is not a defence. Certainly, while the test of belief is subjective, even still, individual states of mind are based on how the underlying facts are resolved.”

    Ms Justice Stewart told the jury in the Central Criminal Court trial that they must consider whether a belief that the woman was consenting could have been “genuinely held, given the circumstances she found herself in”.

    “The defence say that while he did forcibly take her from [her] house, at some stage she could have gone home . . . she decided to reconcile with him, that’s how they ended up in the [second] house,” she said.

    “You have to decide that if he genuinely believed she was consenting, could that belief be genuinely held given the circumstances she has outlined.”


    In the circumstances in this case, the barrister is making the argument that given what the complainant was wearing at the time of the encounter, the defendants belief that the encounter was consensual was honestly held, and was not unreasonable.
    How can you claim that she was making that specific argument when she didn't mention the defendant or his beliefs, honest, reasonable or otherwise?

    You're just making it up.


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    #1683
    One eyed Jack
    Registered Users Posts: 23,695 ✭✭✭✭One eyed Jack


    Outlaw Pete wrote: »
    Yeah, Jack, but come on this is subjective to the point of ridiculousness. I'm not saying that there couldn't be a circumstance where a complainant's underwear might be relevant to an accused's honest belief, just fail to see how it is here.

    Justice Minister Charlie Flanagan (who's a solicitor) has said he doesn't see any circumstances were it would be acceptable to make the argument. Has there been a legal challenge made regarding the remarks does anyone know? Seems there would be good grounds for doing so.

    Just playing devil's advocate, I wonder would it have been possible that the prosecution had made reference to her clothing first, and suggested that she had wearing different underwear, and the defense seized upon this and so therefore the style of underwear was not being cited to lend support to the accused's defense of honest belief, but more to show an inconsistency in her story? As, otherwise, I fail to see the relevance in mentioning them tbh.


    The whole point of it being subjective is that it doesn’t matter what Charlie believes, subjective to the point of ridiculousness isn’t saying anything either, as the whole point of something being subjective is that it is the individuals belief is in question. It’s entirely an individual thing as to whether or not a person believes the encounter was consensual. That’s why I’m making the point that it only matters what the defendant believed, and it was up to the jury then to decide whether that belief was honest, and whether it was reasonable.

    None of us here know enough about the whole case to be able to make a determination one way or the other given the limited information about the case that was published in the media.


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    #1684
    One eyed Jack
    Registered Users Posts: 23,695 ✭✭✭✭One eyed Jack


    AndrewJRenko wrote: »
    How can you claim that she was making that specific argument when she didn't mention the defendant or his beliefs, honest, reasonable or otherwise?

    You're just making it up.


    Because she was representing the defendant. She was presenting a defence to the charge of rape. That’s not an unreasonable assumption, and I’m certainly not making it up. You interpret her motivations differently for some reason known only to yourself. Cool, you carry on with that.


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    #1685
    monkeybutter
    Registered Users Posts: 3,476 ✭✭✭monkeybutter


    I think people have been sidetracked by the thong issue. As repugnant as it is.

    As a juror what do you do if you are presented with this case. One persons word against the other essentially.

    One inconclusive witness.

    What do you do.


    from the indo, did they have sex or not? Is that just bad writing?
    He said the girl started "getting funny" as if "she snapped out of a buzz". They were going to have sex, but she said "stop" and he did, he said.
    The jury heard that afterwards the girl told the accused: "You just raped me."
    But he told the teenager: "No, we just had sex."


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    #1686
    Outlaw Pete
    Registered Users Posts: 10,423 ✭✭✭✭Outlaw Pete


    One eyed Jack wrote: »
    It’s entirely an individual thing as to whether or not a person believes the encounter was consensual. That’s why I’m making the point that it only matters what the defendant believed, and it was up to the jury then to decide whether that belief was honest, and whether it was reasonable.

    But, Jack, a solicitor can't just suggest anything to a jury as grounds for why they feel the accused might have had an honest belief. If for example the solicitor had said "You have to take into account that this girl is known for having sex with anyone" a judge would jump in fast and reprimand the solicitor and instruct the jury to ignore the remarks made (might even result in a mistrial) but yet you could then still make the argument you're making here, which is " that it only matters what the defendant believed, and it was up to the jury then to decide whether that belief was honest".

    You see what I'm saying: just because it only matters what the accused honestly believed doesn't mean that mentioning the style of underwear should have been allowed.


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    #1687
    One eyed Jack
    Registered Users Posts: 23,695 ✭✭✭✭One eyed Jack


    Outlaw Pete wrote: »
    But, Jack, a solicitor can't just suggest anything to a jury as grounds for why they feel the accused might have had an honest belief. If for example the solicitor had said "You have to take into account that this girl is known for having sex with anyone" a judge would jump in fast and reprimand the solicitor and instruct the jury to ignore the remarks made (might even result in a mistrial) but yet you could then still make the argument you're making here, which is " that it only matters what the defendant believed, and it was up to the jury then to decide whether that belief was honest".

    You see what I'm saying: just because it only matters what the accused honestly believed doesn't mean that mentioning the style of underwear should have been allowed.


    I do see what you’re saying, and all I can say to you is that a defendants counsel can argue whatever arguments the defendant feels are relevant to their defence, and the Judge is likely to allow them, as it could be argued that to exclude the arguments or evidence that the defendant feels would aid in their own defence, could mean the defendants right to a fair trial was compromised.


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    #1688
    ohnonotgmail
    Registered Users Posts: 40,228 ✭✭✭✭ohnonotgmail


    One eyed Jack wrote: »
    I do see what you’re saying, and all I can say to you is that a defendants counsel can argue whatever arguments the defendant feels are relevant to their defence, and the Judge is likely to allow them, as it could be argued that to exclude the arguments or evidence that the defendant feels would aid in their own defence, could mean the defendants right to a fair trial was compromised.


    There are already restrictions on what "evidence" the defence can introduce. The womans choice of underwear should be included with them.


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    #1689
    One eyed Jack
    Registered Users Posts: 23,695 ✭✭✭✭One eyed Jack


    ohnonotgmail wrote: »
    There are already restrictions on what "evidence" the defence can introduce. The womans choice of underwear should be included with them.


    I don’t see why there should be any restrictions on what evidence can be introduced if the idea is to ensure that the defendants right to a fair trial has been upheld when they are accused of rape.


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    #1690
    AndrewJRenko
    Registered Users Posts: 28,542 ✭✭✭✭AndrewJRenko


    One eyed Jack wrote: »
    AndrewJRenko wrote: »
    How can you claim that she was making that specific argument when she didn't mention the defendant or his beliefs, honest, reasonable or otherwise?

    You're just making it up.


    Because she was representing the defendant. She was presenting a defence to the charge of rape. That’s not an unreasonable assumption, and I’m certainly not making it up. You interpret her motivations differently for some reason known only to yourself. Cool, you carry on with that.
    Thanks for at least clarifying that your position is based on your assumption. Assumption is another way of saying 'making it up'.

    Everyone knows and accepts that the barrister was defending her client.

    You've just assumed (or made up) that when she referred to the thong, she was referring to his honest belief. There is nothing in what she said to support this.


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    #1691
    ohnonotgmail
    Registered Users Posts: 40,228 ✭✭✭✭ohnonotgmail


    One eyed Jack wrote: »
    I don’t see why there should be any restrictions on what evidence can be introduced if the idea is to ensure that the defendants right to a fair trial has been upheld when they are accused of rape.


    the legislators and judiciary in this country disagree with you. If the defence was to say something like "the girl is a well known slut and is always up for it" would you consider that acceptable? Do you think that restricting "evidence" of that sort restricts the defendants right to a fair trial?


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    #1692
    SusieBlue
    Registered Users Posts: 8,029 ✭✭✭SusieBlue


    If the victims underwear is fair game because it "alludes" to her intentions to have sex, the fact that the defendant had previously been convicted of violent crimes and was known to the local Gardaí should have been fair game to.


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    #1693
    Edgware
    Registered Users Posts: 5,875 ✭✭✭Edgware


    It is a Victorian attitude to mention the style of dress the alleged victim was wearing. ( I'm sure there are female barristers swanning around the courts with nice lingerie on underneath)
    However as consent is an issue and it was alleged the underwear had been forcibly removed then that is vital supporting evidence or otherwise and it must be shown


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    #1694
    Outlaw Pete
    Registered Users Posts: 10,423 ✭✭✭✭Outlaw Pete


    One eyed Jack wrote: »
    ...a defendants counsel can argue whatever arguments the defendant feels are relevant to their defence...

    They can't though, that's the point. There are many lines of argument with which consul may not make.
    ...and the Judge is likely to allow them

    But the question is: should they have and why should they have.

    When a judge allows a line of argument to be made during a trial that goes much further than just that trial, as it now means that any solicitor can then cite it during future trials (when they'd like to make a similar argument for their client). Back in 70's the step father of a mate of mine killed two guys who tried to mug him in town and at least once a week his trial is cited in Irish courts because of a line of argument that the judge allowed the defense to make way back then.
    it could be argued that to exclude the arguments or evidence that the defendant feels would aid in their own defence, could mean the defendants right to a fair trial was compromised.

    Could it though, Jack? I mean, given that we are talking about a 'style of underwear' there really should be no basis for later arguing that the defendant did not receive a fair trial purely because the defense were not allowed to argue that the lacey underwear, which the complainant was wearing, was somehow relevant to the defendant having an honest belief that the complainant had consented.


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    #1695
    LLMMLL
    Registered Users Posts: 4,588 ✭✭✭LLMMLL


    One eyed Jack wrote: »
    I’ve given my interpretation of what she said numerous times now - she was suggesting that the jury consider all the evidence and whether or not the evidence rules out the possibility that the defendants honest belief the encounter was consensual, is reasonable, given the circumstances as they were presented at trial. This would have meant if the jury agreed that the defendants belief was honest, and that it was reasonable, they could not find the defendant guilty, as there was reasonable doubt as to whether or not the defendant could be found guilty of the criminal offence of rape as it is defined in Irish law.

    Except as multiple people have commented, she never mentions the defendant or his beliefs.

    You can't have it both ways Jack. If her not mentioning consent means she wasn't linking the underwear to consent then her not mentioning his honest belief must also mean she was not referring to his beliefs.

    Or are you the only one who can infer the meaning behind quotes?


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    #1696
    One eyed Jack
    Registered Users Posts: 23,695 ✭✭✭✭One eyed Jack


    ohnonotgmail wrote: »
    the legislators and judiciary in this country disagree with you. If the defence was to say something like "the girl is a well known slut and is always up for it" would you consider that acceptable? Do you think that restricting "evidence" of that sort restricts the defendants right to a fair trial?


    Isn’t that the same as me pointing out that the legislators and judiciary of this country disagree with your opinion that the complainants underwear when it is evidence should not be permitted to be used by defence counsel?

    I think any restriction of evidence which the defendant in any case argues is relevant to their defence, immediately restricts the defendants right to a fair trial. I may find the evidence they introduce distasteful, I personally may not see it as relevant, but the important point I’m making is that it is a matter for the defendant to argue the relevance of any evidence which they feel is relevant in assisting them in their own defence.


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    #1697
    LLMMLL
    Registered Users Posts: 4,588 ✭✭✭LLMMLL


    One eyed Jack wrote: »
    I do see what you’re saying, and all I can say to you is that a defendants counsel can argue whatever arguments the defendant feels are relevant to their defence, and the Judge is likely to allow them, as it could be argued that to exclude the arguments or evidence that the defendant feels would aid in their own defence, could mean the defendants right to a fair trial was compromised.

    Where are you getting your info on the above? How do you know that the judge is going to allow WHATEVER arguments the defense feel are relevant?


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    #1698
    ohnonotgmail
    Registered Users Posts: 40,228 ✭✭✭✭ohnonotgmail


    One eyed Jack wrote: »
    Isn’t that the same as me pointing out that the legislators and judiciary of this country disagree with your opinion that the complainants underwear when it is evidence should not be permitted to be used by defence counsel?

    I think any restriction of evidence which the defendant in any case argues is relevant to their defence, immediately restricts the defendants right to a fair trial. I may find the evidence they introduce distasteful, I personally may not see it as relevant, but the important point I’m making is that it is a matter for the defendant to argue the relevance of any evidence which they feel is relevant in assisting them in their own defence.


    There was no such argument in this trial. The defence introduced the underwear as part of their closing arguments.


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    #1699
    One eyed Jack
    Registered Users Posts: 23,695 ✭✭✭✭One eyed Jack


    Outlaw Pete wrote: »
    They can't though, that's the point. There are many lines of argument with which consul may not make.


    They can, and the Judge in the case will decide whether or not the evidence is relevant in assisting the defendant in their own defence.

    But the question is: should they have and why should they have.

    When a judge allows a line of argument to be made during a trial that goes much further than just that trial, as it now means that any solicitor can then cite it during future trials (when they'd like to make a similar argument for their client). Back in 70's the step father of a mate of mine killed two guys who tried to mug him in town and at least once a week his trial is cited in Irish courts because of a line of argument that the judge allowed the defense to make way back then.


    Yes, I would argue that they should. Because the alternative is that an innocent person is deprived of their liberty on the basis that the Judge made an error in judgement.

    Could it though, Jack? I mean, given that we are talking about a 'style of underwear' there really should be no basis for later arguing that the defendant did not receive a fair trial purely because the defense were not allowed to argue that the lacey underwear, which the complainant was wearing, was somehow relevant to the defendant having an honest belief that the complainant had consented.


    Yes it could, and there could be a basis for arguing that the defendant did not receive a fair trial because they were not allowed to argue that the complainants underwear was relevant to the defendants honest belief that the complainant had consented. That’s precisely why it’s allowed to be argued as it stands now.


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    #1700
    astrofool
    Registered Users Posts: 16,471 ✭✭✭✭astrofool


    ohnonotgmail wrote: »
    There was no such argument in this trial. The defence introduced the underwear as part of their closing arguments.

    I don't think there's been enough detail of the case to know that. The clothing was likely introduced as part of the forensic detail related to what happened being in a mud puddle.


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    #1701
    ohnonotgmail
    Registered Users Posts: 40,228 ✭✭✭✭ohnonotgmail


    astrofool wrote: »
    I don't think there's been enough detail of the case to know that. The clothing was likely introduced as part of the forensic detail related to what happened being in a mud puddle.


    you have no basis for saying that. we dont know they were mentioned in closing arguments and the fact they had lace on them was somehow germane.


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    #1702
    ohnonotgmail
    Registered Users Posts: 40,228 ✭✭✭✭ohnonotgmail


    One eyed Jack wrote: »
    They can, and the Judge in the case will decide whether or not the evidence is relevant in assisting the defendant in their own defence.





    Yes, I would argue that they should. Because the alternative is that an innocent person is deprived of their liberty on the basis that the Judge made an error in judgement.





    Yes it could, and there could be a basis for arguing that the defendant did not receive a fair trial because they were not allowed to argue that the complainants underwear was relevant to the defendants honest belief that the complainant had consented. That’s precisely why it’s allowed to be argued as it stands now.


    and we are back to the start again. What part does a womans choice of underwear play in whether the defendant thought he had consent?


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    #1703
    One eyed Jack
    Registered Users Posts: 23,695 ✭✭✭✭One eyed Jack


    ohnonotgmail wrote: »
    and we are back to the start again. What part does a womans choice of underwear play in whether the defendant thought he had consent?


    That’s surely for the defendant to answer.


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    #1704
    ohnonotgmail
    Registered Users Posts: 40,228 ✭✭✭✭ohnonotgmail


    One eyed Jack wrote: »
    That’s surely for the defendant to answer.


    It is not enough for the defendant to say that the choice of underwear meant he thought he had consent. His justification must be reasonable to the ordinary person. Do you think that a womans choice of underwear would lead the reasonable person to conclude that they had consent?


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    #1705
    One eyed Jack
    Registered Users Posts: 23,695 ✭✭✭✭One eyed Jack


    ohnonotgmail wrote: »
    It is not enough for the defendant to say that the choice of underwear meant he thought he had consent. His justification must be reasonable to the ordinary person. Do you think that a womans choice of underwear would lead the reasonable person to conclude that they had consent?


    I agree with you that it’s not enough for the defendant to say the choice of underwear meant he thought he had consent. It would have to be considered in the context of all of the evidence presented at trial. I don’t think it’s unreasonable to assume that a persons choice of underwear is indicative of their intentions. It depends upon the context and the circumstances. To my mind it’s reasonable to assume that a person wears sexy underwear when they intend to have sex.


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    #1706
    TomSweeney
    Registered Users Posts: 3,194 ✭✭✭TomSweeney


    Hurrache wrote: »
    So underage. You have different levels of rapeyness that you use as a yard stick?


    As uncormfortable as it may sound, there is gradations in seriousness in these cases.


    You can't deny that, it's bad, but hardly as bad as if she was 12 ? or 11 ... or 5 ... gets worse and worse.


    I am not condoning a grown man being with a 15 year old, in fact I think it's creepy even if she was 18 (brains still developing - you could argue she is still not mature enough to make that decision) but we draw a legal line somewhere...


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    #1707
    ohnonotgmail
    Registered Users Posts: 40,228 ✭✭✭✭ohnonotgmail


    One eyed Jack wrote: »
    I agree with you that it’s not enough for the defendant to say the choice of underwear meant he thought he had consent. It would have to be considered in the context of all of the evidence presented at trial. I don’t think it’s unreasonable to assume that a persons choice of underwear is indicative of their intentions. It depends upon the context and the circumstances. To my mind it’s reasonable to assume that a person wears sexy underwear when they intend to have sex.


    and intending to have sex (assuming such a conclusion can be drawn) does not mean an intention to have sex with a particular person.


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    #1708
    PlaneSpeeking
    Banned (with Prison Access) Posts: 5,106 ✭✭✭PlaneSpeeking


    TomSweeney wrote: »
    As uncormfortable as it may sound, there is gradations in seriousness in these cases.


    You can't deny that, it's bad, but hardly as bad as if she was 12 ? or 11 ... or 5 ... gets worse and worse.


    I am not condoning a grown man being with a 15 year old, in fact I think it's creepy even if she was 18 (brains still developing - you could argue she is still not mature enough to make that decision) but we draw a legal line somewhere...

    Two of my good mates were technically breaking the law when they got together. At the time they met the gay age of consent was 21. They've been together since one was 22 and one 19. Yet they've been together 30 years now; in a civil partnership for 13 years and married for 3.

    Sleeping with a willing 17 year old is COMPLETELY different to molesting a younger teenager, or worse - a kid.


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    #1709
    PlaneSpeeking
    Banned (with Prison Access) Posts: 5,106 ✭✭✭PlaneSpeeking


    ohnonotgmail wrote: »
    and intending to have sex (assuming such a conclusion can be drawn) does not mean an intention to have sex with a particular person.

    I'm uncomfortably reminded of the scene with the hooker in Leaving Las Vegas.

    Yes, she was there to have sex, for money.

    She was - in my view - still raped by the three lads.


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    #1710
    One eyed Jack
    Registered Users Posts: 23,695 ✭✭✭✭One eyed Jack


    ohnonotgmail wrote: »
    and intending to have sex (assuming such a conclusion can be drawn) does not mean an intention to have sex with a particular person.


    Well of course assumptions can be wrong, obviously. The question is whether or not it was a reasonable assumption that someone would honestly believe the sexual encounter was consensual if the person they were having sex with was wearing sexy underwear at the time. They may of course have assumed wrong, it happens, but when they’re accused of rape, then their belief as to why they believed the sexual encounter was consensual may well be predicated upon the style of underwear the complainant was wearing at the time.

    Is it unreasonable to assume that people wear sexy underwear when they’re having sex? I don’t think that’s an unreasonable assumption.


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    #1711
    retro:electro
    Registered Users Posts: 21,039 ✭✭✭✭retro:electro


    One eyed Jack wrote: »
    The question is whether or not it was a reasonable assumption that someone would honestly believe the sexual encounter was consensual if the person they were having sex with was wearing sexy underwear at the time. They may of course have assumed wrong, it happens, but when they’re accused of rape, then their belief as to why they believed the sexual encounter was consensual may well be predicated upon the style of underwear the complainant was wearing at the time.

    You’re making huge leaps in assuming the style of underwear even informed a part of the defence. The comments were made at closing statement by senior counsel and weren’t phrased in a way which supposed the defendant had expressed this was the case at all. She was passing judgement on the plaintiffs underwear. She did not say “my client had every reason to believe this encounter was consensual judging by the plaintiffs underwear”.. she said “YOU will have to look at the how she was dressed. A thong with a lace front”. She was putting the onus on them to decide on behalf of the plaintiff if the underwear she had put on hours before informed consent. She was implying consent is a pre-meditated act. She was asking the jury to decide whether or not a thong with a lacy front could imply consent on behalf of the plaintiff. She never even mentioned the defendant or what he thought.


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