Ben Lowry: Rugby rape trial shone a light on modern attitudes to sex, consent and celebrity

By a coincidence of time and place, it highlighted in dramatic fashion some major shifts in modern culture — with regard to sexual codes among young people, for example, and also with regard to the public curiosity about celebrities.

And there was another relatively new aspect to the fevered context of such a serious criminal hearing — the full and unceasing glare of online social media.

We are now in a digital age in which reporters are allowed to ‘tweet’ from courtrooms. This means we can send instant, but perhaps unintentionally misleading, snippets of the trial to thousands of followers within moments of them being uttered in court.

Outlets such as Facebook and Twitter can be explosively angry and judgemental forums for the exchange of views and information.

If someone posts a message saying A is a liar or B is a swine or X is guilty of Y, they might be placing themselves on the wrong side of libel laws but in practice such comments on a vast range of issues by countless social media users are almost un-policeable — unless you use the repressive Chinese tactic of closing down web networks.

Famous politicians would be laughing stocks if they tried to challenge the deluge of nasty or inaccurate tweets about them each day.

Since the rape trial ended on Wednesday, there have been post trial developments that would have been unnecessary (because impossible) after such a case 20 years ago — there are defamation proceedings, taken by a player who was acquitted against an Irish politician’s tweet on the trial, and there is an inquiry by the attorney general into an online comment by a juror who sat in the case.

The trial was also an instance of two fast-moving sexual cultural trends colliding.

On the one hand there is a sexual freedom that means young people around the world watch explicit pornography as a matter of course.

Material that was inaccessible to school pupils when I was in my teens in the 1980s, except for the occasional wily boy who would get hold of a video that would be deemed soft porn today, is now a click away.

Young folk also seem familiar with terms for group sex, and are seemingly un-surprised by offers to engage in it.

On the other hand, amid this sexual free-for-all in western societies, there is also a greater focus on the meaning of ‘consent’.

The director of Public Prosecutions in England and Wales Alison Saunders has said that someone under severe influence of drink may not be able to consent to sex.

An uncontested aspect of this rape trial was that the protagonists had been drinking heavily on the night in question in June 2016.

There were details and accounts of events at the party where the alleged attack took place and afterwards that did not tally and both the prosecution and defence lawyers questioned witnesses on their ability to remember events when they had drunk so much.

Yet that in itself does not mean all memories are flawed: most people who enjoy alcohol will know it is still possible to have moments of clarity when impaired by it.

One of the most upsetting things I have witnessed in Belfast was from a taxi one night in a crowded part of the city after the bars emptied, and I saw a man helping a screaming and crying woman as she was separated from two other women in a fight. I was well over the drink-drive limit, hence the taxi, but remember the scene vividly 10+ years later.

Between covering and handling many other news stories in recent weeks, I was present at enough of this trial to see most key witnesses, who seemed plausible. It became clear to me weeks ago that the case had not been proven beyond a reasonable doubt.

I thought this even before one of the defence barristers, in his closing speech, told the jury that even being ‘fairly sure’ someone is guilty is not enough.

I say this not to imply anything about the defendants or complainant or the prosecution decision to bring the case, but just to apply the criminal standard for conviction.

There was too much fog around the facts. This was despite a painstaking attempt by police, prosecution and defence to weave together a welter of digital evidence into a timeline and invite the jury to take inferences from parts of it.

Any car driver who has watched TV road safety ads or listened to the news will now know that their phone will be closely examined if they are involved in a serious crash.

This case showed that the same applies in other criminal probes.

Some digital messages uncovered by investigators looked ugly. Many people in their heads convicted the players the moment they heard of the boastful “top shaggers” texts (but such openness could also suggest it never crossed their minds that they had carried out a rape).

That evidence pointed to an arrogance that is not uncommon in sportsmen.

I have only a minor interest in sport, but went to schools in which rugby players are held in esteem. The best of them are told from age 12 they are stars. Some of them emerge from years of flattery as gentlemen, but others do not.

In recent years there has been a canonisation of people with great sporting gifts. Consider the speed with which knighthoods have been conferred on athletes whose dubious character later emerged.

But being a cocky or aggressive sportsman does not make you a rapist.

Taking the stand in this case was clearly an agonising, humiliating and prolonged ordeal for the complainant and also the defendants.

But observers and politicians have weighed in to say the process is flawed. That is easy to say. Rectifying it is not.

What I saw was a comprehensive attempt by the authorities to get to the bottom of what happened that night and a major effort by the court to make things as comfortable as possible for the complainant.

I also saw the court try to facilitate defence lawyers in their determined bid to get as fair a hearing as possible for their clients.

All along, the core principle of open justice was maintained.

There were minor errors all round — by investigators, by lawyers, by the court and journalists — but this is inevitable when dealing with millions of words of detail.

It is a grave injustice when a rape goes unpunished but at least as grave a one if an innocent party is convicted of it.

How this fine balance can be altered without increasing the prospect of one or other of those injustices in such cases is hard to see.

But if we are going to be a drink-fuelled, sexual free-for-all culture, while increasingly vigilant about consent, then ways to pre-register consent will have to be considered.

It sounds horrible and clinical but is a lot less horrible than a trial.

• Ben Lowry (@BenLowry2) is News Letter deputy editor

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