Readers' blog: Why underwear should not be a factor in consent

What does it take for a women to report a rape? 

Apart from an empire of courage, persistence, resilience, and determination, she must think that there is a chance, or a hope, that justice might be served. 

Justice, of course, is a great balancing act. 

In rape trials, Article 6 of the European Convention on Human Rights, the right to a fair trial, is one of the most important rights considered because it has enormous impacts on your civil obligations and rights. 

The presumption of innocence until proven guilty (in criminal trials, this bar needs to be ‘beyond reasonable doubt’) doesn’t apply to public opinion. 

Even if a person is found ‘not guilty’ in a court of law, it doesn’t mean they are free from lifelong public smearing.

Elizabeth O’Connell, the barrister in the recent Cork rape case, is perceived as a woman who has slapped the #MeToo movement in the face and betrayed the sisterhood. 

That is not to say that every woman who defends a man accused of rape is anti-female, nor is it to say that every woman who questions allegations is eroding the progress of feminism. 

Barristers act on instructions. 

It is not uncommon for a barrister to comment on underwear in the courts, and it is usually a female’s lingerie, not a pair of boxers. 

Having said that, the vast majority of rape allegations are by females, so it is not surprising that boxers are rarely examined by juries.

The Belfast rape trial was attended by members of the public popping down during their lunchbreak. 

Unlike Northern Ireland, in this jurisdiction rape trials are, by comparison, more considerate of both the victim and the accused. 

Most rape cases in this jurisdiction are in-camera (where the public and press are not allowed to observe the procedure or process, or at least part of it), and the anonymity of both the accused and the victim is preserved (unless they wish to waive this right). 

Whilst rape cases might be in many ways fairer in this jurisdiction, there are still common practises that ought to be examined and reassessed — the relevance of underwear to a rape trial might be one of them. 

Perhaps if the underwear was torn, ripped, or contained blood or DNA, it might be relevant, or perhaps it should only be brought forward if the barristers can outline its relevance to the evidence. 

Sex without consent is rape. 

It is difficult to imagine how any type of underwear — with or without lace features — is in any way indicative of consent.

Linking underwear to invitations implies that a woman is provoking a man by wearing certain garments, and therefore somehow responsible, or partly responsible, for his actions. 

It mutes the calls for consequence and it furthers the frustrating victim-blaming culture in Ireland.

It might be argued that the treatment of women in rape trials is reflective of society because it is the jury that decides outcomes in rape trials, not the legal counsel. 

It is the judge who decides on a point of law and a jury who decides on a point of fact, but this is also a chicken and egg scenario. 

Did the jury decide organically and spontaneously that the woman was partially to blame, or did the barristers plant this seed by implication, and lead them to that decision?

In some high-profile rape cases, ironically, the guardians and upholders of justice are the very same people perceived to be warping it. 

The law plays a pivotal role in what is and what is not acceptable to society. 

Barristers should be more aware of how their words affect not only their own public image, but also rape victims, in deterring them from coming forward. 

While it is hugely unfortunate for Elizabeth O’Connell that she is subject to public outrage, it might make barristers in the future choose their words more carefully, if these same words have the potential to be echoed around the world and all the way to the New York Times.

Perhaps the best thing from the public outrage could be a re-examining of the process of a rape trial in Ireland and revising guidelines for judges. 

Tom O’Malley, lecturer in law at NUIG, is assessing the legal protection given to complainants in rape trials. 

Every woman in the country, and everyone with an opinion on the #MeToo movement will be interested in his recommendations.

Perhaps we can hope that some day, if a barrister speaks about how a particular style of underwear is reflective of consent, the judge will be expected to ask ‘how?’

Fiona O’Malley


Co Dublin

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