** Content Warning: This post deals with a recent rape trial and personal opinions on the case.
Is dress code consent? In an Irish trial the defence barrister held up a rape victim’s underwear in court to argue that by wearing a lace thong the girl had consented to sex that night. This case is being met with protesters on behalf of the girl and people posting pictures of their underwear online with the hashtag #ThisIsNotConsent.
The claimant in this case was a 17-year-old girl and the accused was a 27-year-old male. They had met in a club where she says he dragged her out and raped her in the mud outside despite her telling him to stop. He however claims they had kissed and wanted to have sex, so they went outside and had sex on a pile of mud. There is a witness that places him on top of her in a pile of mud outside, but no one can attest to the pair kissing in the club.
The 27-year-old was acquitted after the jury comprised of 8 men and 4 women agreed with the defence barrister that the victim had consented to sex because of the underwear she wore that night. The rape crisis centre is now making a move to have lawyers banned from using clothing as a means to prove consent. Women and men should be able to wear whatever they feel appropriate in as long as it falls within the dress code of an establishment or does not break laws. When it comes to underwear it is worn beneath the clothing. The accused would not have even seen her underwear until her outer layer of clothes were off.
Should Clothing be used as a Defence?
It could be argued on the defence side that many women will wear nice underwear when meeting up with a potential mate in case clothing does come off in order to be ‘sexy’. I think this is what the defence was trying to make a point of when they said that the young woman was open to meeting people. Did she put on nice underwear just in case she decided to have sex with someone in the club later? However, this is too large of a generalization and does not apply to everyone. Many women wear thongs as a way to get rid of underwear lines being seen through pants, to feel 'sexy' for themselves or just simply because some find them comfortable. Most female underwear in today’s society are lace if you walk into a retail store because lace is considered ‘sexy’ and deemed to be the ‘in style’. So, I do not believe it was reasonable for a jury to acquit a man beyond reasonable doubt based on underwear. Or to assume she was looking for sex that night based on her underwear. As an Irish MP said in court, it is a form of victim blaming.
The Real Question
If underwear were not used as a defence in this case what points should have been focused on? Unfortunately, rape cases do not have much evidence to go off of sometimes and it is one person's word against another. With some people 'crying wolf' in certain cases it is hard to convict someone of a crime that carries serious repercussions with little evidence. In deciding a rape case; it comes down to consent. While the defence did focus around consent for their argument; it was largely misplaced at the girl's clothing. It could have been focused on how she got into a club at 17 years old. It is assumed that everyone in the club is of legal age. Technically she lied about her age and it was a form of deception on her behalf. She would have likely used a fake ID to get into the club which is illegal on her part.
She said that she told him no and directly told him that he had raped her afterwards to which he replied it was sex not rape. Even if she had wanted to have sex at first with him, she could have withdrawn consent at any point in time and if he did not stop it would be considered rape. She contended that at no point did she want to have sex with this man therefore there was no consent. There was also alcohol involved which in R v Bree  it was said that if voluntary consumption of alcohol rendered a person incapable to consent to have sex then it would be rape. A witness saw them on the mud pile so obviously something happened. However, the real question is who would want to have sex on a pile of mud if it was consensual?
Hopefully this young woman is able to successfully appeal the decision on the basis that clothing should not be used to determine consent.
R v Bree  EWCA 256