Consent (Sexual)

alastair

creditcarder wrote: »

Well, that's me sorted.

I hope so. It’s a nonsense.

alastair

One eyed Jack wrote: »

No, it implies the presumption of innocence, that all citizens are presumed innocent and entitled to their good name, and in the case of an injustice such as being found guilty on the basis of an argument that they did not receive a fair trial, they are entitled to an appeal to restore their good name and vindicate the presumption of innocence.

It does no such thing. Nothing implies any presumption of innocence. All it does is commit to providing mechanisms for defending one’s self where unjustly accused.

One eyed Jack

bubblypop wrote: »

the underwear wasn't brought into evidence during the trial, where, the prosecution could argue against it.
It was brought in by the barrister in her closing statement.
so, although it was part of evidence, the same as all the clothes the female was wearing, it wasn't brought in during the trial, as some kind of evidence that the female was possibly open to sex.

It was though? The prosecution could have argued against it at any stage, I don’t know whether they did or they didn’t but it was permitted to be entered into evidence by the Judge. These were the exact words used by the defence in their closing arguments (which are part of a trial) -


The accused maintained that the sexual contact between him and the girl, which took place in a laneway in Cork, had been consensual.

Details of the closing argument presented by his senior counsel Elizabeth O'Connell, however, attracted widespread attention and prompted a series of online protest movements.

"Does the evidence out-rule the possibility that she was attracted to the defendant and was open to meeting someone and being with someone?" she asked, according to the Examiner's report.

"You have to look at the way she was dressed. She was wearing a thong with a lace front."


She was speaking as to whether or not the defendant could have been of the belief that the encounter was consensual, and whether or not that belief was reasonable was a matter for the Jury to decide. I don’t know if I’d have risked the same strategy as it could have influenced the jury either way. Some people would undoubtedly have regarded it as being irrelevant in any case, and for some people it would have indicated that the accused belief that the encounter was consensual was not unreasonable given the way the alleged victim was dressed.

That is not the same thing as saying that a victim of rape is inviting themselves to be raped based upon their appearance or their behaviour. In a court of law it’s an entirely different matter where the defendant is on trial, is entitled to a fair trial, and their defence has an obligation to represent their client to the best of their ability. That is to say that the barrister themselves may have found their own actions distasteful and unreasonable, but they have a duty to defend their client to the best of their ability.

One eyed Jack

alastair wrote: »

The reasonable assumption to make is that there’s merit in presenting underwear choice as a mitigating defence in a context of a rape claim. And that’s a social problem.

According to the defence though, there is no question about the defendants innocence, so I don’t know where you’re getting the notion that they should have any regard for a claim of rape by the prosecution?

alastair

One eyed Jack wrote: »

According to the defence though, there is no question about the defendants innocence, so I don’t know where you’re getting the notion that they should have any regard for a claim of rape by the prosecution?

Umm, all defendants claim they didn’t do it. That this defence thought that they could roll out a pair of undies as a credible counter to the matter being adjudicated - a claim of rape, is where the problem lies.

One eyed Jack

alastair wrote: »

It does no such thing. Nothing implies any presumption of innocence. All it does is commit to providing mechanisms for defending one’s self where unjustly accused.

It does though, and a citizen’s right to their good name doesn’t just imply the presumption of innocence, it places an obligation on the State to protect those rights. That’s why the separation of powers exists between the State and the judiciary, so that the State cannot wrongly convict a person of any wrongdoing without the right to a fair trial in which the State has to present their case that the person is not innocent and has indeed committed a criminal offence. That’s why the accused are presumed innocent, not just during a trial. A verdict of not guilty only vindicates their right to the presumption of innocence. They maintain that right before, during and depending upon the outcome of a verdict, after a trial too.

One eyed Jack

alastair wrote: »

Umm, all defendants claim they didn’t do it. That this defence thought that they could roll out a pair of undies as a credible counter to the matter being adjudicated - a claim of rape, is where the problem lies.

I’m aware that all defendants claim they didn’t do it, and it’s the job of the prosecution to be concerned about presenting their evidence to support their belief that the defendant is guilty. In the matter being adjudicated, it is whether or not the defendant is guilty of the crime of which they are accused of committing. It stands to reason that the defence would pull out all the stops as it were in defence of their client, and it stands to reason that they would be permitted to do so in order that an innocent person would not be wrongly deprived of their liberty. You don’t seem to be able to get that for whatever reason.

alastair

One eyed Jack wrote: »

It does though, and a citizen’s right to their good name doesn’t just imply the presumption of innocence, it places an obligation on the State to protect those rights. That’s why the separation of powers exists between the State and the judiciary, so that the State cannot wrongly convict a person of any wrongdoing without the right to a fair trial in which the State has to present their case that the person is not innocent and has indeed committed a criminal offence. That’s why the accused are presumed innocent, not just during a trial. A verdict of not guilty only vindicates their right to the presumption of innocence. They maintain that right before, during and depending upon the outcome of a verdict, after a trial too.

It’s a right to defend themselves. That doesn’t imply any presumption of innocence. Anyone - innocent or otherwise, can make use of those rights to legal defence. The verdict is crystal clear in not ascribing any judgement of innocence - for good reason - it’s not it’s job.

alastair

One eyed Jack wrote: »

I’m aware that all defendants claim they didn’t do it, and it’s the job of the prosecution to be concerned about presenting their evidence to support their belief that the defendant is guilty. In the matter being adjudicated, it is whether or not the defendant is guilty of the crime of which they are accused of committing. It stands to reason that the defence would pull out all the stops as it were in defence of their client, and it stands to reason that they would be permitted to do so in order that an innocent person would not be wrongly deprived of their liberty. You don’t seem to be able to get that for whatever reason.

Once again - The reasonable assumption to make is that there’s merit in presenting underwear choice as a mitigating defence in a context of a rape claim. And that’s a social problem.

Lonesomerhodes

bubblypop wrote: »

jaysis, angry much?
at the time of the court case, the female was the complainant, or if you would, the vicitm.

really doesn't matter, her underwear should not have been used in clsoing statements the way it was, it was disgraceful

Angry haha. I'm hear in work chilling with a tea and a Kimberly tea cake far from angry pal more tired really.

I'm saying the young man was found not guilty and it was a lady barrister who made the comments. Why do people despise facts so much here?.

SusieBlue

Lonesomerhodes wrote: »

Angry haha. I'm hear in work chilling with a tea and a Kimberly tea cake far from angry pal more tired really.

I'm saying the young man was found not guilty and it was a lady barrister who made the comments. Why do people despise facts so much here?.

The point being made is that those types of comments should not be made by anyone.
The type of underwear a woman chooses to wear is completely irrelevant and has no place being offered up as "proof" that she was up for it.

One eyed Jack

alastair wrote: »

It’s a right to defend themselves. That doesn’t imply any presumption of innocence. Anyone - innocent or otherwise, can make use of those rights to legal defence. The verdict is crystal clear in not ascribing any judgement of innocence - for good reason - it’s not it’s job.

I never suggested that a persons right to defend themselves has any implications on their right to the presumption of innocence? It’s the job of the prosecution to present a case to a jury of their peers that would convince the jury beyond a reasonable doubt that a person is not innocent, and should therefore be punished. The law does not seek to punish innocent people, it seeks to protect innocent people. That’s why everyone has the right to the presumption of innocence and to have that right vindicated and protected in Irish law, regardless if they never appeared before a court of law charged with a criminal offence!

One eyed Jack

alastair wrote: »

Once again - The reasonable assumption to make is that there’s merit in presenting underwear choice as a mitigating defence in a context of a rape claim. And that’s a social problem.

I disagree. It’s a problem for you, certainly, but to suggest that your thinking is a fair or reasonable reflection of society’s thoughts on the issue would be entirely unfounded, especially given the way you’ve chosen to frame the issue when a person who is presumed innocent is on trial accused of committing rape and you call that a rape claim, implying that they are guilty of having committed rape, that they just weren’t convicted.

alastair

One eyed Jack wrote: »

I never suggested that a persons right to defend themselves has any implications on their right to the presumption of innocence? It’s the job of the prosecution to present a case to a jury of their peers that would convince the jury beyond a reasonable doubt that a person is not innocent, and should therefore be punished. The law does not seek to punish innocent people, it seeks to protect innocent people. That’s why everyone has the right to the presumption of innocence and to have that right vindicated and protected in Irish law, regardless if they never appeared before a court of law charged with a criminal offence!

Who suggested that anyone wanted to punish innocent people?
The law doesn’t presume innocence anywhere other than a criminal trial - and that’s for the very simple reason that adjudication needs to be based on as neutral perspective as possible. The same reason convictions on other crimes are not allowed to be introduced into evidence. But once the trial ends, the presumption of innocence dies with it - regardless of the verdict.

Lonesomerhodes

SusieBlue wrote: »

The point being made is that those types of comments should not be made by anyone.
The type of underwear a woman chooses to wear is completely irrelevant and has no place being offered up as "proof" that she was up for it.

OK but you must acknowledge too a lady barrister who specialises in the law on several grand a week for her expertise begs to differ.

One eyed Jack

SusieBlue wrote: »

The point being made is that those types of comments should not be made by anyone.
The type of underwear a woman chooses to wear is completely irrelevant and has no place being offered up as "proof" that she was up for it.

Being up for sex, and being up for being raped, are clearly not in the same ball park. Most reasonable people are able to make that determination for themselves as to whether or not a persons underwear is or isn’t relevant depending upon the context.

alastair

One eyed Jack wrote: »

I disagree. It’s a problem for you, certainly, but to suggest that your thinking is a fair or reasonable reflection of society’s thoughts on the issue would be entirely unfounded, especially given the way you’ve chosen to frame the issue when a person who is presumed innocent is on trial accused of committing rape and you call that a rape claim, implying that they are guilty of having committed rape, that they just weren’t convicted.

Nothing to do with me. I’m implying nothing other than a defence that introduces underwear choice as a reasonable mitigation in the face of that rape claim, is a reflection of broader social concerns on the issue of an understanding of rape.

alastair

One eyed Jack wrote: »

Being up for sex, and being up for being raped, are clearly not in the same ball park. Most reasonable people are able to make that determination for themselves as to whether or not a persons underwear is or isn’t relevant depending upon the context.

But it’s instructive that the defence thought it worthwhile to conflate the two.

CtevenSrowder

alastair wrote: »

But it’s instructive that the defence thought it worthwhile to conflate the two.

They didn't. The defence's position is that no rape occurred. It was consensual.

Lonesomerhodes

Lonesomerhodes wrote: »

OK but you must acknowledge too a lady barrister who specialises in the law on several grand a week for her expertise begs to differ.

Do you understand how Barristers work?

One eyed Jack

alastair wrote: »

Who suggested that anyone wanted to punish innocent people?
The law doesn’t presume innocence anywhere other than a criminal trial - and that’s for the very simple reason that adjudication needs to be based on as neutral perspective as possible. The same reason convictions on other crimes are not allowed to be introduced into evidence. But once the trial ends, the presumption of innocence dies with it - regardless of the verdict.

That’s where you’re wrong. The law always presumes innocence and it’s for that reason our judicial system is based upon an adversarial process of defence v prosecution, where the burden of proof is on the prosecution to make their case that the defendant is guilty. It’s also untrue to say that convictions for other crimes are not allowed to be introduced into evidence, and we had quite a recent case where the defendants previous convictions were permitted to be introduced into evidence -


Tinder rape fiend Patrick Nevin unmasked as vile past of Irishman who sexually assaulted three women he met on dating app revealed


His last-minute pleas yesterday followed a legal ruling on Monday morning which would have allowed prosecutors to introduce evidence from previous victims.

alastair

One eyed Jack wrote: »

That’s where you’re wrong. The law always presumes innocence and it’s for that reason our judicial system is based upon an adversarial process of defence v prosecution, where the burden of proof is on the prosecution to make their case that the defendant is guilty. It’s also untrue to say that convictions for other crimes are not allowed to be introduced into evidence, and we had quite a recent case where the defendants previous convictions were permitted to be introduced into evidence -


Tinder rape fiend Patrick Nevin unmasked as vile past of Irishman who sexually assaulted three women he met on dating app revealed


His last-minute pleas yesterday followed a legal ruling on Monday morning which would have allowed prosecutors to introduce evidence from previous victims.

Nope. Presumption of innocence is clearly a status that only assigns to those defending themselves in a criminal trial. Nowhere else.

Previous convictions were not entered into evidence in that criminal trial btw - the article appears to refer to an earlier civil case - where they can be.

Previous convictions inadmissibility in a criminal trial: https://www.irishlegal.com/article/court-of-appeal-jury-should-have-been-discharged-upon-inadvertent-disclosure-of-accuseds-previous-imprisonment

Lonesomerhodes

One eyed Jack wrote: »

Being up for sex, and being up for being raped, are clearly not in the same ball park. Most reasonable people are able to make that determination for themselves as to whether or not a persons underwear is or isn’t relevant depending upon the context.

Like I said a barrister on a few grand a week for for expertise thinks it's relevant. I am not saying this is right or wrong frankly my opinion on the matter doesn't matter much like everyone else's here.

I find it ironic though many here are so delusional and egotistical and vain they assume they know more than a barrister on the law and creating a defence. :rolleyes:

SusieBlue

Lonesomerhodes wrote: »

OK but you must acknowledge too a lady barrister who specialises in the law on several grand a week for her expertise begs to differ.

No, I don't acknowledge that at all.
Barristers are employed to get their clients off the hook at any cost. Barristers are not experts in sex crimes or dealing with victims of sex crimes.
Barristers do not have the authority to decide if someone's choice of knickers implies consent.

There is absolutely nothing in our constitution that states that a womans choice of knickers can give consent on her behalf. She made that statement in an effort to discredit the victim, it was completely irrelevant and had no place in a rape trial.
A thong cannot consent on behalf of a person.
It should never have been said, male or female.

One eyed Jack

Lonesomerhodes wrote: »

Like I said a barrister on a few grand a week for for expertise thinks it's relevant. I am not saying this is right or wrong frankly my opinion on the matter doesn't matter much like everyone else's here.

I find it ironic though many here are so delusional and egotistical and vain they assume they know more than a barrister on the law and creating a defence. :rolleyes:

I don’t think that in bold is a fair comment. The argument being put forward is simply that it shouldn’t have been permitted for the jury to consider a valid argument being put forward by the defence in support of the fact that their client had an honest belief that the encounter was consensual, and that their client’s belief was reasonable. That was the considerations that had to be made by the Jury and they would have received directions from the Judge as to what they should or shouldn’t consider relevant or irrelevant as the case may be.

People here are getting hung up on the importance of the jury not being allowed to consider the evidence in the trial of a person accused of a criminal offence, and that’s just not how court procedures actually function. The priority in a court of law is that the accused who is presumed innocent has their rights respected and protected, as not doing so leads to circumstances where a verdict can be overturned on appeal.

Had the jury convicted the defendant in that particular case, it’s unlikely there would have been any mention of any particular piece of evidence or how it was presented and whether or not that was a determining factor in the jury’s deliberations. It may well have been that the jury came to the conclusion the person was not guilty of rape because they actually didn’t commit rape.

SusieBlue

One eyed Jack wrote: »

Being up for sex, and being up for being raped, are clearly not in the same ball park. Most reasonable people are able to make that determination for themselves as to whether or not a persons underwear is or isn’t relevant depending upon the context.

No it doesn't. Wearing a thong doesn't mean anything, except that the person wearing it wanted to wear a thong.
Inanimate objects cannot consent on behalf of people. I can't believe this even needs to be pointed out.

alastair

CtevenSrowder wrote: »

They didn't. The defence's position is that no rape occurred. It was consensual.

As evidenced by knicker choice. Sure. Let’s recall that the context was that of a rape trial.

alastair

One eyed Jack wrote: »

I don’t think that in bold is a fair comment. The argument being put forward is simply that it shouldn’t have been permitted for the jury to consider a valid argument being put forward by the defence in support of the fact that their client had an honest belief that the encounter was consensual, and that their client’s belief was reasonable. That was the considerations that had to be made by the Jury and they would have received directions from the Judge as to what they should or shouldn’t consider relevant or irrelevant as the case may be.

People here are getting hung up on the importance of the jury not being allowed to consider the evidence in the trial of a person accused of a criminal offence.

Can only speak for myself, but at the risk of repetition - it’s nothing to do with what’s permissible to enter into a trial, nor anything to do with the verdict, but a defence that introduces underwear choice as a reasonable mitigation in the face of that rape claim, is a reflection of broader social concerns on the issue of an understanding of rape.

Lonesomerhodes

CtevenSrowder wrote: »

They didn't. The defence's position is that no rape occurred. It was consensual.

They don't like facts around here buddy!.

These facts have people jumping on us here for pointing factual points.

CtevenSrowder

alastair wrote: »

As evidenced by knicker choice. Sure. Let’s recall that the context was that of a rape trial.

And? The defence's position is that the rape didn't happen. The knicker choice was part of a body of evidence