What made me write this article was a barrage of negative comments, directed at defence lawyers, after what happened in a court case some time ago where a female victim was forced into a van and sexually assaulted on the way home. Despite the fact that the victim sounded traumatised as she repeated her side of events, the defence not only continuously asked her why she did not escape from the van, even though she repeatedly said that she froze and that one would need to be in the situation to know what was going through her head, but the (male) defence lawyer even more odiously asked her what she was wearing and queried whether her leggings were tight.

So does a defence lawyer have any right to put such a question, is such a question relevant and should the court allow any questions relating to dress and draw conclusions from its implications?

I honestly used to think that, yes, lawyers are entitled to ask such questions as they may be relevant and that the court should not detract lawyers from that line of questioning, but today, I am convinced otherwise.

Courts have held that a woman's clothing may signify her implied consent to be sexually assaulted or her implied welcome to sexual harassment. Because consent to sex is a defence to rape and welcoming sexual advances is a defence to sexual harassment, courts tend to consider clothing to be probative, and thus relevant, evidence.

The belief that clothing can indicate consent to sexual assault or can invite sexual harassment stems from the empirically proven fact that most people infer the intent and attitude of others based on their clothes. Because those inferences are often inaccurate, clothing can hardly be probative or relevant evidence of the intent or attitude of the wearer. Furthermore, the widespread misinterpretation of clothing strongly suggests that introducing it to show intent or attitude will likely be prejudicial. For these reasons, I think clothing should be inadmissible in a criminal prosecution if offered to show the complainant's attitude or intent.

Unfortunately, we have no available data showing how often clothing is introduced in rape or sexual assault cases for the purposes of showing consent, but it does occur, as the case mentioned above goes on to prove. Our law does not explicitly address the admissibility of the clothing of a rape or sexual assault complainant as evidence. In all probability, it will be admitted by our courts pursuant to the governing rules of evidence. These rules provide that all relevant evidence is admissible and that evidence that is not relevant is not admissible.

Consequently, to introduce clothing as evidence of consent, the defendant would have to show that the evidence is relevant to the question of consent. The evidence would be considered relevant if it has any probative value, that is, if it has any likelihood of proving or disproving consent. However, it is left up to the presiding judge or magistrate to determine its relevance or otherwise.

Too often, police, lawyers for defendants and judges question the victim of rape about what she was wearing and use the length of her dress as an indicator of consent.

"She wore a short dress”, "You have to look at the way she was dressed. She was wearing a thong with a lace front". By her behaviour, her dress, or her look, she asked for it: "Are you sure it was not your fault? Maybe you provoked him? There was no crying or screaming. You didn’t push him away".

Those are comments and questions that I have come across when prosecuting in trials by jury concerning rape and sexual offences. They are all forms of victim blaming that I would describe as rape myths.

Because clothing conveys messages to observers that are inaccurate reflections of the wearer's actual intent, attitudes and personality characteristics, clothing should not be relevant to the issue of consent. The popular belief, however, is that clothing does accurately reflect attitude and intent. Because judges and magistrates are not immune to inaccurate perceptions and because they may adhere to stereotypical beliefs, they are likely to find that clothing is probative of consent and, thus, admit the victim's clothing as evidence pursuant to the rules of evidence. However, even where such a line of questioning is admittedly relevant, I contend that it should be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.

Because general societal attitudes are reflected in our judicial system, judges and magistrates are likely to believe and act on the belief that a woman can contribute to her victimisation by the way she dresses. Because such inferences have been shown to be inaccurate and because judicial officers are likely to make them, the law needs to prevent that evidence from reaching the jury. By barring such evidence, the law will assure that no one will make the inaccurate inferences and assumptions about a victim's manner of dress that people are likely to make.

Victims in these types of trials often describe it as like another rape or sexual assault because of the kinds of questions they are asked and the kinds of details they are required to answer about their appearance, their behaviour and their past experiences.

Today, I have come to understand and believe that rape is never the victim’s fault. The only one responsible is the rapist.

Dr Mark Said is a lawyer