From The New York Times and CNN, to the BBC, The Guardian and the South China Morning Post, the Cork rape trial has gained international notoriety and, along with it, widespread condemnation of the comments used by defence barrister Elizabeth O’Connell SC. In her closing argument, O’Connell stated asked “does the evidence outrule the possibility that she was attracted to the defendant and was open to meeting someone and being with someone? You have to look at the way she was dressed. She was wearing a thong with a lace front.”
It is not difficult to understand how the legal necessity of establishing whether consent was given often leads complainants to feel like they are the ones on trial, rather than the alleged perpetrator. As is the case with all juries, it is impossible to know whether, or to what degree, weight was attached to arguments over the complainant’s clothing. The law, however, should require judges to direct a jury not to consider such comments.
It is not an argument at all to suggest that a complainant placed themselves in a vulnerable position, or wished rape or sexual assault upon themselves, by wearing any particular article of clothing, and that consent could reasonably and naturally follow. It would further be a feat of legal gymnastics to claim that the ability to consent to a sexual act could be assigned to an inanimate article of clothing. Clothing cannot, and should not, be considered a communicable medium when it comes to sex and consent.
It is, instead, a legal tactic used to denigrate and discredit a victim’s character, to convince the court that they not only gave consent, but that they did so from the moment they had put their clothes on; that there was no circumstance under which they would ever have refused to give consent. All of this is somehow to be implied from the very fabric of the victim’s clothes and their desire to socialise.
Such a specious argument is easily rebuttable, and an innocent accused, already at a significant legal advantage, would be better served by appealing to the truth and hard law. Any precedent which establishes clothing as an element of giving consent undermines the autonomy of the individual and the need for a conscious and clear indication of their willingness to participate in sexual activity. It does so to the detriment of all victims.
A call by the Law Reform Commission for public input on the reform of rape law in relation to the knowledge and belief of consent ended on 26th October 2018. A proposal for reform which does not address these comments, made so frequently in rape trials, would be incomplete.