Jurors told not to make moral judgements on accused or 'victim blame' in rape trial

A judge has told the jury in the trial of three Dublin men accused of raping a woman in a car that they must not make moral judgements on the accused or engage in “victim blaming”.

The three men, who are now in their early 20s and who cannot be named for legal reasons, have pleaded not guilty at the Central Criminal Court to raping a woman at Bull Island, Dollymount, Dublin, on January 5, 2016.

The defendants were all teenagers when, it is alleged, they drove the then 18-year-old woman to Dollymount strand, took turns in raping her before leaving her and driving away. The men say that they each had consensual sex with the woman.

One of the accused gave direct evidence during which he said he and “his gentleman friends” treated the complainant with “nothing but respect” on the night.

On day 26 of the trial Paul Greene SC, defending the third accused, said that “this is a sordid enough event, on a winter's evening and three people having sex with [the complainant] one after another”.

“None of the three believed they had committed a crime and each of the three believed there was consent. And there was consent,” he said.

He asked jurors to consider if his client intended to rape the woman why would he have used a condom or why would he have dumped it at the scene instead of “disposing of the evidence”.

In his charge Mr Justice Alex Owens told jurors they were not being asked to make moral judgements on the behaviour of anyone involved in the case.

He said it was not part of their function to engage in judgements of people who they found had bad sexual etiquette, or having fun at someone else's expense.

“You are not asked to make moral judgements on caddish behaviour,” he said.

He describing as nonsense various “rape myths”, including an idea that woman regularly make up rape allegations for no reasons.

He said it also was not a defence to an allegation of rape that a woman was engaged in risky or promiscuous behaviour. He said this was known as “victim blaming” and told jurors they must not do it.

He said they must also not have a fixed view that “there is no smoke without fire”.

Mr Justice Owens said that consent should not be equated with submission. He said that a failure to offer resistance is not consent and it is not necessary to prove that a person shouted for help or tried to escape.

He said it is required to be established that the person alleged to have committed a rape knows the woman does not consent or has been reckless as to whether there was consent. He said a man who has a genuine belief, even if it is a misguided belief, that a woman is consenting is not guilty of rape.

Mr Greene earlier told jurors that the presence of sachets of lubricant gel in the jacket pocket of the complainant was a “very interesting aspect” of the case.

He said when cross-examined about this the woman said she must have picked it up while in the Sexual Assault Treatment unit (SATU) of the Rotunda hospital.

“But she wasn't examined in the SATU until after the clothing had been examined and the lubricant found. What she was signing up to (in her testimony) was not possible and the impossibility of that is apparent to all of us,” he said.

He told jurors that the woman's demeanour “as she tried to sell you that pup” was very striking and she gave her explanation “with an engaging and truthful appearance”.

Mr Justice Owens said he will complete his charge to the jury tomorrow morning. The jury will then begin its deliberations.