There is no “classic reaction” to being raped, the judge has told jurors in the rape trial of Ireland and Ulster players Paddy Jackson and Stuart Olding.
On Friday the jury of eight men and three women at Laganside Crown Court are being addressed by judge Patricia Smyth on the relevant law in the case.
She will set out what the prosecution must have proved in order to allow them convict on any of the charges.
She will also remind them of the key points in the case and highlight the strengths and weakness of each side’s arguments.
She will then restate the duties of the jury to decide the case impartially and only on the evidence presented in court.
This process is expected to take a day and a half, meaning the jury will begin its deliberations on Tuesday.
Stuart Olding is accused of orally raping the then 19-year-old Belfast student at the same time his teammate Paddy Jackson allegedly vaginally raped and sexually assaulted her.
Blane McIlroy is alleged to have then walked into the room naked and told her: “You f**ked those guys. Why not me?”
Allegations of sexual assault can give rise to a great deal of emotion in all of us, the judge said. It is easy to be angered and have sympathy for a young girl who has been put through a trial such as this.
“These are understandable emotions but they do not assist in reaching a verdict,” she said.
“Sympathy or prejudice have no role to play in the case.”
Assumptions
She said jurors may have assumptions about what kind of person is a rapist or what a person does when they are being raped.
“There is no stereotype for a rape, or a rapist or a victim of rape or how people behave after they have been raped.”
She said it was impossible to predict how a rape victim will react afterwards. There is no classic reaction.
During a rape some people fight back and some people freeze, she said. When giving evidence witnesses can be calm or they can be distressed.
“You must not assume because she showed distress or emotion that it must be true,” she said. “Demeanour or behaviour in court is not necessarily a clue to the truth of the witness’s account.”
She told jurors to ignore anything they read in the press or on social media, particularly on Twitter. “They will not assist you.”
The judge said the morals of the people involved have no bearing on the case, even if the jurors find their sexual behaviour “distasteful.”
Referring to texts sent by the men boasting about their sexual activity, she said they may be crude or derogatory to women.
She told jurors that young men may use language and expressions which are common parlance among their own group but may not reflect their own views.
She said men can brag and try to impress their friends with stories about their sexual prowess but these might not reflect reality.
It will be up to jurors to determine what the parties meant when they used “words, phrases or emoji symbols.”
The judge gave the jurors a document explaining the law involved in this case which she described as “complex”.
Referring to the rape charge against Mr Jackson, the judge said the prosecution must prove he penetrated her, however slight. They must also prove the complainant did not consent and that Mr Jackson did not reasonably believe she consented.
Mr Jackson has said he did not penetrate the woman with his penis.
Consent
Consent has a particular legal meaning, the judge said. “A woman consents if she agrees by choice and has the sense and capacity to agree by choice.”
Consent is different to submission. Consent can be given, even with reluctance. But when a woman is so overwhelmed by fear that she does not resist, that is not consent, she said.
The prosecution do not have to prove she fought back or that she said she did not consent.
The third ingredient in the charge, Mr Jackson’s belief as to consent, “is an entirely separate question” and relates to his state of mind at the time, the judge said. If he believed she consented and if that was a reasonable belief, the jury must acquit.
Jurors must be sure of all three elements of the charge before they can convict, she said.
Alcohol can inhibit decision making but a person can still consent if they have the capacity. It is up to jurors to decide if the woman drank so much she did not have the ability to consent.
The drunkenness of Mr Jackson has no bearing on whether he reasonably believed the woman consented, the judge said.
On the count of sexual assault against Mr Jackson, the judge said the prosecution must prove he penetrated her with his fingers, that she did not consent to this and that he did not reasonably believe she was consenting.
Each element must be proved to convict.
Mr Jackson has told the jury he digitally penetrated the woman consensually.
Stuart Olding is accused of one count of oral rape. Judge Smyth said the prosecution must prove the same three elements that apply to the rape and sexual assault charges.
Forced
Mr Olding said the woman performed consensual oral sex on him. The woman alleges she was forced to do it.
On the count of exposure against Mr McIlroy, the prosecution must prove he intentionally exposed his genitals to the woman and that he intended her to see them and be “alarmed or distressed”.
Mr McIlroy says he entered the bedroom fully clothed and the woman performed consensual oral sex on him. The woman says he entered the room naked, thrust his penis at her and asked for sex before she ran out.
Unlike the rape counts, his alcohol consumption is a factor jurors must consider when deciding his intent to cause alarm or distress, the judge said. However the mere fact that he was affected by drink does not mean he is not guilty. “Drunken intent is nevertheless an intent.”
Mr Jackson (26), of Oakleigh Park, Belfast has pleaded not guilty to rape and sexual assault in the early hours of June 28th, 2016 at a party in his house. Mr Olding (25), of Ardenlee Street, Belfast, denies one count of rape on the same occasion. Both men contend the activity was consensual.
Mr McIlroy (26), of Royal Lodge Road, Ballydollaghan, Belfast, has pleaded not guilty to one count of exposure while Mr Harrison (25), from Manse Road, Belfast, pleaded not guilty to perverting the course of justice and withholding information relating to the incident.
Harrison
Mr Harrison is accused of perverting the course of justice and withholding information. Regarding the perverting the course of justice count, the judge said the prosecution must prove three elements.
First, that Mr Harrison made a witness statement lying about his dealings with the woman or that he deliberately omitted relevant information.
Second, that the lie or omission might have perverted the course of justice. And third, that Mr Harrison intended to pervert the course of justice.
The evidence against Mr Harrison is circumstantial and not direct, the judge said.
None of individual pieces of circumstantial evidence prove guilt but taken together they might, the judge said.
The mere fact he didn’t mention a fact is not enough to prove guilt. The prosecution must prove he deliberately intended to conceal the fact.
The trial has heard Mr Harrison told police he did not tell them about a text he received from the woman alleging a lack of consent because he was not specifically asked about it.
He said if he had been asked he would have disclosed it.
Jurors must also be sure that the lie or omission could have impeded the police investigation.
The prosecution say there are three pieces of information that would have helped the investigation which Mr Harrison sought to conceal; that he saw nudity that night, that he thought events were not going to end well and that the complainant was significantly more distressed that he described.
The defence says he did provide a truthful account and that he gave his honest recollection of the events. They say there is “clear evidence of memory impairment” on the complainant’s part.
Charge
The judge also addressed jurors on the law on the final count which alleges Mr Harrison withheld information.
The charge may appear similar to the previous count but it is quite different, she said. The prosecution must prove that a rape occurred, that Mr Harrison knew or believed it occurred and that he knew or believed he had information which would help to prosecute the offender. Lastly they must prove that he failed to disclose this information to police.
If the jury finds a rape did not occur, they must acquit Mr Harrison on this charge.
Suspicion that a rape occurred is not enough; he must have known or believed it did. The key factor is Mr Harrison’s state of mind, not what the jurors think he ought to have known or believed, the judge said.
The prosecution says he must have known a rape occurred because he saw two or more of the men with the complainant and he knew that “something happened.”
This can be inferred from his text stating “It’s not going to end well,” the prosecution say.
They also say he must have known based on the text from the woman stating “what happened was not consensual”. Mr Harrison himself has given evidence this text was connected to the allegation of rape, they say.
The defence says there is no factual basis which could allow jurors to be sure he knew a rape occurred.
They say he did not believe the woman’s “not consensual” text message and that he gave evidence that “Patrick is the last person in the world to rape anyone.”
The judge has now completed the first stage of her address to the jury.
On Monday she will highlight some parts of the evidence and explain the approach jurors should take towards them.
