Why the Thong Defense is Dangerous

In Ireland, earlier this month, a defense attorney held up a 17-year-old’s lace thong underwear in court to defend a 27-year-old man accused of rape.  Her closing argument to the jury asked them to reflect on what the girl had been wearing, “You have to look at the way she was dressed.  She was wearing a thong with a lace front.”  The man, who had maintained that the sexual contact in a muddy alley was consensual, was acquitted of rape. 

The argument that a woman’s clothing is probative of her intent to engage in sex is certainly not new.  It has played out in society and the criminal justice system forever.  It has been argued in a number of ways from her clothing invited her rape to men can’t be expected to control themselves in the face of a short skirt or tight top.

This level of victim-blaming and shaming in rape cases still goes on in society and it is particularly dangerous when it is endorsed by the legal system.  By permitting a woman’s clothing to be introduced at trial, courts are accepting the premise that clothing conveys a woman’s attitude or intent to have sex.  Clothing or appearance can be a form of visual communication however, it is a form of communication that is complex and wrought with inaccurate interpretation. In preparing for a job interview you may carefully choose your attire, intent on conveying confidence, intelligence, responsibility, or trustworthiness.  But the meaning of appearance varies greatly based upon the observer, the context, and the location.  How an individual interprets clothing will be based on their socio-economic status, experience, geography, education, culture and many other factors.  Your potential employer may view your carefully chosen designer interview suit as ill-fitting and conveying unintelligence or apathy.  In this case the message received by the observer of the clothes was not remotely close to the message intended by the wearer.

In my early days of prosecution, I used to tell victims and witnesses the appropriate court attire was “Sunday best.”  At one point a witness showed up for court in something completely inappropriate.  After speaking with the witness, I realized that what she was wearing was the nicest thing she owned and she considered it her “Sunday best.”  I recognized that my definition of “Sunday best” was shaped by my upbringing, socio-economic status, and education and therefore differed greatly from others’ definition     of “Sunday best.”   In future cases I was much more specific about what you can and can’t wear to court and I never again told someone to dress in their “Sunday best.” 

Just as our interpretations of what’s appropriate for a specific occasion can differ, different people can assign different meaning to the same article of clothing.  A lace bra might be viewed by one person as sophisticated or feminine and by another as provocative or sleazy.  And neither of these interpretations tells us what message, if any, the wearer of the bra intended.  There may have been no thought or intended message.  Perhaps it was simply her last clean bra.

The clothing as consent defense would be considered ludicrous if presented in any other crime.  It’s not a robbery if the man was wearing an expensive suit and Rolex watch because clearly by wearing those items in public, he was consenting to have them taken from him.  If you own an expensive house, you should expect your house will be burgled.  It’s not the burglar’s fault, he was only doing what comes naturally to him because you put it out there and flaunted it in front of him.  You get my point.  In no other criminal case would what you own or what you are wearing be considered evidence of your consent to be victimized.

Clothing should be inadmissible in a sexual assault prosecution if offered to show the complainant’s attitude or consent toward sex.There is inherent ambiguity in using clothing as a means of communication to show consent.Because jurors often believe and act on societal stereotypes, such as the belief that a woman can contribute to her victimization by the way she dresses, the law must prevent that evidence from being presented to the jury.By keeping that information from the jury, the court will effectively prevent defense counsel from using the thong defense, and prevent the jury from making inaccurate assumptions about consent based on the victim’s attire.This would result in verdicts based on evidence rather than inference, conjecture and stereotypes.