Clothing Is Not Consent: Reflections on a Recent Irish Trial

Updated: Feb 12, 2019

by Stephanie Hauer

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On November 6, a 27-year-old Irish man in Cork was found unanimously not guilty of raping a 17-year-old girl. As part of his defense, his senior legal counsel, Elizabeth O’Connell, told the jury, “Does the evidence out rule the possibility that she was attracted to the defendant and was open to meeting someone and being with someone? You have to look at the way she was dressed. She was wearing a thong with a lace front.”

I was not there when the alleged assault occurred and cannot speak to this man’s guilt or innocence. However, I can unequivocally say that a thong is not consent. No article of clothing, no matter how revealing or “sexy,” is consent. Only a person can give consent regarding what happens or doesn’t happen to their body. Saying otherwise robs them of their agency and dignity as a human person. Using someone’s clothing choice to determine their willingness to have sex says that someone else’s assumptions hold more weight than the person’s own voice.

The attorney’s actions in this trial is a classic case of victim blaming, an unfortunately common phenomenon. Too often there is a narrow focus on the behavior of the survivor of assault. This focus examines their choices to find fault with them. It leads to statements like:

“You shouldn’t have worn such a skimpy outfit.”

“You shouldn’t have been drinking so much.”

“You shouldn’t have walked home alone.”

“You shouldn’t have led them on.”

“You should have said ‘no’ sooner.”

Victim blaming does not take into account that the actions of a rapist are not the fault of the survivor. When sexual assault occurs, regardless of whatever choices the victim made, the rapist made their own choice to assault another human being. The rapist decided to proceed with their devastating attack when sex was not wanted or welcomed. The rapist decided to put their own need for power and gratification over the right of their victim to say “no.” The rapist saw their victim as an object and a means to an ends, rather than as a whole person with valid and unique needs and desires and hesitations. It should go without saying that unless there is an on-going, enthusiastic, freely-given “yes,” sex and sexual acts should not continue.

Many in Ireland were outraged by the use of rape stereotypes and victim blaming in a legal trial. On Wednesday, November 14, there were protests in several Irish cities, including Limerick, Dublin, and Cork. Waterford is scheduled to host a similar protest on Friday. These protests align themselves with the comments made by Noeline Blackwell, the chief executive of the Dublin Rape Crisis Center. She said, “These kind of mythologies and stereotypes around rape come up again and again in court cases, because the defence to rape is that the sex was consensual. So anything the defendant can do to suggest there was consent will be used.” She pointed to England and Wales, which have specific models that judges can follow if stereotypes about rape are used in the courtroom. In those cases, the judge reminds the jury that the trial is about the presence or absence of consent to sex, not about the clothing worn.

Similarly, the chair of the National Women’s Council of Ireland, Grace O’Malley Dunlop, said, “I would like to see training for everybody in the court process. I would like to see special courts for victims of rape and sexual violence where you have judges and barristers who are specifically trained in this whole area, and who are dealing just with the law around it.” The various protests around Ireland, as well as the social media campaign of #ThisIsNotConsent, demonstrate support for these suggestions of a closer look at legislation and procedure around rape trials.

#sexualassault

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