#ThisIsNotConsent: Relevant Evidence in Sexual Assault Trials

NB: This post contains descriptions of sexual violence

Recently, a rape trial in Ireland made international headlines following the admission of the seventeen-year-old complainant’s underwear into evidence. The defence argued that the sexual encounter, which took place in an alleyway, was consensual.1 In closing arguments, Defence Counsel suggested that, based on her underwear, the complainant was open to being intimate on the night in question. Defence Counsel stated: “you have to look at the way she was dressed. She was wearing a thong with a lace front.”2 The twenty-seven-year-old accused was subsequently acquitted. Tragically, the complainant has since taken her own life.

Under Canadian law, all relevant evidence is presumptively admissible. Evidence may not be admitted if it is subject to an exclusionary rule, or if the presiding judge exercises their discretion to exclude the evidence based on its prejudicial effect which outweighs its probative value.3 However, if the proffered evidence is irrelevant, it is unnecessary to invoke exclusionary rules or balancing exercises. Relevance is necessarily the starting point for the admission or exclusion of any piece of evidence.

For evidence to be relevant, it must have “some tendency as a matter of logic and human experience to make the proposition for which it is advanced more likely than that proposition would be in the absence of that evidence”.4 In other words, evidence is relevant if it pertains to a live issue and either supports or opposes a proposition which provides an answer to that issue. This is a fact-driven, contextual analysis.

With respect to the Ireland rape trial, the ultimate question may be framed thus: was the complainant’s lacy thong relevant to the issue of consent?

The answer can be nothing short of a resounding, emphatic no. Based on the Defence Counsel’s statement mentioned above, we can surmise that the proposition she intended to support by proffering such evidence was the idea that women who wear lacy thongs intend to have sex. This proposition is inherently problematic. Besides suggesting that the complainant “wanted it”, which is dangerously close to espousing the victim-blaming rape myth that “she was asking for it”, this proposition is simply incapable at law of supporting any answer to the issue of consent.

In Canada, the law of consent is based upon an affirmative model in order to protect the sexual and physical integrity of the complainant. Consent denotes voluntary participation – a “yes” to the sexual activity in question, which may be expressed by words or conduct.5 Consent must coincide with the sexual activity at the time that it actually takes place, such that consent is revocable at any time and it cannot be given in advance.6 Whether the complainant consented to the sexual activity in question is determined by reference to her internal, subjective state of mind towards the sexual touching at the time that it occurred.7

Rape myth aside, the proposition that donning lacy underwear evidences the intention to have sex is wholly inconsistent with the affirmative model of consent. Even if we accept the proposition as true, it ignores the principle that consent is revocable and may not be given in advance. Further, accepting such a proposition hinges on first accepting the defence of implied consent, which was unequivocally rejected by the Supreme Court of Canada in R v Ewanchuk.8 For the purposes of the actus reus of sexual assault, the complainant’s subjective point of view is determinative. If the complainant testifies that she did not consent, and the presiding judge finds her to be credible, the analysis is complete.9 The complainant’s lacy underwear is entirely irrelevant.

In Canada, sexy underwear simply does not and cannot establish consent. There is no principled reason for the state of the law in Ireland to be any different. Accepting that the complainant’s underwear is in any way relevant to the issue of consent ultimately condones the use of rape myth and victim-blaming in sexual assault trials. It suggests that what a woman wears beneath her clothes has more evidential value and weight than her own subjective intentions. This calls into question our very understanding of meaningful consent and obstructs the ability of the law to protect sexual and physical integrity. The outcome and dire consequences of this case provide a tragic example. This is not what consent should look like.

Endnotes

1 “Irish outcry over teenager’s underwear used in rape trial”, BBC News (2014), online: <https://www.bbc.com/news/world-europe-46207304>.

2 Ibid.

3 Sidney N Lederman, Alan W Bryant, and Michelle K Fuerst, Law of Evidence, 4th edition (Markham: LexisNexis Canada Inc, 2014) at 51.

4 R v White 2011 SCC 13 at para 36.

5 R v Ewanchuk [1999] 1 SCR 330 at para 47.

6 R v JA 2011 SCC 28 at para 43.

7 Ewanchuk, supra note 5 at paras 26.

8 Supra note 5.

9 Ibid., at para 29.