Experts back rape trial reform after Cork trial protests

Dr Susan Leahy

Law lecturers Dr Susan Leahy of University of Limerick and Dr Catherine O’Sullivan of University College Cork told Irish Legal News that reported remarks by the barrister were an example of “rape myths” in court.

According to the Irish Examiner, the barrister representing the 27-year-old accused in the case told the jury: “Does the evidence out-rule 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.”

The jury unanimously found the man not guilty after an hour and a half of deliberation.

The trial sparked international media coverage and protests under the banner “#ThisIsNotConsent”, attended by hundreds of people in Cork, Dublin and Limerick yesterday and Belfast today. A further protest will take place in Waterford tomorrow.

Dr Leahy, who recently co-authored Sexual Offending in Ireland: Laws, Procedures and Punishment, told Irish Legal News that raising issues such as “a complainant’s mode of dress” in a criminal defence is “a form of victim-blaming that has no place in a rape trial”.

She continued: “We now have a statutory definition of consent which clearly states that consent means free agreement - the exercise of genuine sexual choice. What a victim was wearing, or other evidence which relates to myths about ‘real rape’ or ‘real victims’, has no place in a jury’s determination of this issue.

“I think the protests are important and should cause not just actors in the criminal justice system, but society more generally, to question our attitudes towards consent and sexual activity. Further action in this area is needed - both legal and social reform.

“I think further work on training all those involved in the trial process is necessary to ensure that complainants are always treated fairly and irrelevant evidence is not used to confuse juries.

“However, it is also important to raise awareness of all the supports that are available to complainants to ensure that they continue to come forward and are not discouraged from seeking justice as a result of stories like this recent one.”

Dr Catherine O'Sullivan

Dr O’Sullivan, who lectures in criminal law and criminology, said: “The Cork case was not the first and will not be the last case where the jury’s attention is directed away from the accused and his behaviour and towards the complainant and her attire.

“What a complainant wears is entirely irrelevant to consent. Consent, as is stated clearly in the amended 1990 Act, is freely given and can only come from the person themselves. It is not something that can or should be inferred from clothing.

“Rape myths should have no place in our courts. They undermine the pursuit of justice rather than support it.”

She added: “The reporting of sexual offences is in the public interest, and in order to encourage more reporting of such crimes, steps need to be taken to ensure that it is the behaviour of the accused that is the focus of a trial, not what the complainant wore.”

However, she warned that “the problem is broader than the conduct of sexual offence trials”.

Dr O’Sullivan said: “Jurors who serve on juries represent society and if rape myths are prevalent in society, it is not surprising that they will be present in the minds of jurors when deciding on the credibility or not of the accused, whether or not they are explicitly raised by counsel.

“Accordingly, the #ThisIsNotConsent movement serves two purposes. The first is to argue for reform of the conduct of sexual offence trials; the second is to raise public awareness about the inappropriateness of rape myths.”