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13 November 2018

Since when did your choice of knickers equal consent?

A lawyer in a rape case urged the jury to “look at the way she was dressed. She was wearing a thong with a laced front”.

By Sian Norris

In a 2005 Amnesty International survey on attitudes towards victims of sexual violence, 26 per cent of British respondents said a woman was partially or totally responsible for her rape if she was wearing sexy or revealing clothing.

I was reminded by this statistic last week, when the defendant’s senior counsel, Ms Elizabeth O’Connell SC, told jurors in a rape trial in Ireland that they should consider the underwear being worn by the 17-year-old alleged victim. In her closing statement, she directed the jury to “look at the way she was dressed. She was wearing a thong with a laced front”. O’Connell argued that the young woman’s choice of underwear suggested she was “open to meeting someone and being with someone.”

The 27-year-old male defendant in the case was found not guilty.

The jury considered many subjects brought up in court, including witness statements, and the defendant’s testimony, according to the account by the Irish Examiner.

But putting aside the specific circumstances of the case, the fact that the alleged victim’s underwear was presented as evidence raises questions about our understanding of consent, and how consent is defined.

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Firstly, a woman could be wearing whatever pair of pants she wants, fully planning to have sex with her husband, boyfriend, or guy she met at a club, and she still has the right to withdraw consent at any time. Lacy thongs or full-on Spanx, no matter what you wear, consent is yours to give or withdraw. Anyone that chooses to ignore that withdrawal of consent has committed rape.

So to use a girl’s underwear choices as indicative of consent is a nonsense. Sexual consent isn’t a code passed on through lace and cotton – it is a verbal and physical signal that must always be respected.

I remember as a teenage girl buying thongs with my friends from high street shops. Fashion magazines urged its adolescent readers to wear skimpy knickers, and “big granny pants” were the punchline to a million Bridget Jones-style jokes. Even pop songs told girls that to look nice you had to wear a g-string. I joined my friends in buying thongs not because I wanted to have sex, or hoped to meet someone, but because I wanted to fit in.

If anything, this need to conform has gotten worse in the last 20 years, with teenage girls trapped in a double bind. They are under immense pressure to perform a certain kind of sexuality – intensified by the ubiquity of pornography. Whether it’s wearing lacy underwear or getting waxed even if they’re not sexually active, teenage girls are pressured to appear sexually available. Another example is adolescent sexting. Girls feel more pressure to sext than boys, and worry they’ll be judged harshly as “a prude” for not complying.

On the one hand, then, girls worry they’ll be punished for not fitting in and conforming to expectations that they’ll perform a certain level of available sexuality. Yet at the same time, these same girls are harshly judged when they do conform – from being slut-shamed, to having their behaviour used against them as proof they are unrapeable.

Following the trial in Cork, the Head of Rape Crisis Centre Dublin Noeline Blackwell responded by saying unfortunately she wasn’t surprised that the girl’s underwear was used as evidence by the defence. She told the Irish Examiner “all of these things are rape stereotypes that are used by defendants to plant a doubt in the minds of a jury taking away from the law which is that sex without consent is a crime”.

It’s worrying that, 13 years after the Amnesty survey, these kinds of rape myths remain so common and so influential.

Over and over again, we see rape cases where the jury is asked to consider whether the alleged victim was drunk, her sexual history, whether she had flirted with the defendant, and what she was wearing. Text messages arranging dates are used as proof of consent, even though consent can be withdrawn at any point. A woman’s historic preference for certain (common) sexual positions is used against her – as though enjoying sex with one man makes a woman unrapeable by the next.

All these reasons have been given in court to prove a woman consented, leading to not guilty verdicts or to a case being dropped.

And that’s when you get to court in the first place. I recently interviewed a woman where the CPS had chosen not to take a rape allegation forward. The reason? The woman was in a relationship with the alleged rapist, and so the jury would struggle to believe she hadn’t consented to the named incidents. Nearly 30 years after rape in marriage was criminalised, it’s still a struggle to convince people that a man can rape his partner.

It can’t be ignored, either, that a double-standard exists regarding those who allege rape, and rape defendants. While a woman’s drinking is used to prove her consent (in the Amnesty survey, for example, nearly a third of respondents felt a woman was wholly or partially responsible for rape if she were drunk), a man’s drunkenness is used to excuse his violent behaviour. Similarly, those alleging rapes are expected to hand over SMS and social media data. Men’s text messages boasting of sexually aggressive behaviour are dismissed as banter.

In the Cork case, the defendant was found not guilty. That was the jury’s decision following a 90-minute deliberation, and is to be respected by all of us.

But in 2018, we must object to using knickers to justify consent. Because, as the old Reclaim The Night chant used to say, “whatever we wear and wherever we go, yes means yes and no means no”.