SINGAPORE: When a former Grab driver was accused of sexually assaulting a drunk passenger, his lawyer had to prove that the man believed the female passenger had given consent by kissing and straddling him.
That meant going through audio recordings and descriptions of the sexual acts during the trial when questioning the accuser.
Although the prosecution argued that the woman was incapable of giving consent because she was intoxicated, the external manifestations of her demeanour and behaviour were relevant.
The High Court judge said they led the driver to believe in good faith that she had given valid consent.
Five years after he was accused of the crimes, the former driver was cleared of the allegations.
Lawyers say when defending clients in sexual assault cases, the focus of their questions is on relevance. This may mean how the act allegedly occurred, and not how the victim dressed or looked.
In the case involving the former Grab driver, lawyer Mohamed Fazal Abd Hamid of IRB Law said the court had considered several issues, such as the woman having situational awareness and the capacity to make decisions even though she did not give verbal consent.
“These issues were considered and established during the trial. Therefore, casting aspersions on the victim’s character should never be part of the case theory to be pursued by counsel during trial,” said Fazal, who is not connected to the case.
He said the victim’s character or sexual history, if any, was not at all relevant to the trial.
“Any cross-examination questions that seek, explicitly or implicitly, to cast the victim in a certain way based on her character or sexual history cannot be asked to the victim,” he added.
Ng Kai Ling, associate director at LIMN Law Corporation, illustrated the point on relevance with another example.
She said if someone claims she was molested on a train by a stranger, the accuser’s sexual history is irrelevant. However, it may be relevant if the accused is in a romantic relationship with the alleged victim.
In the second scenario, there would be greater tolerance for questions pertaining to the nature of the relationship between them, such as if there was intimate contact previously.
She said this is because these questions would be relevant to the issue of whether the alleged victim could have given, or be perceived to have given, valid consent.
“Therefore, lawyers play an important role in determining and advising their client on what is relevant and what is irrelevant, based on the facts and circumstances of each case,” said Ng.
The issue of relevance came up after a High Court judge said on Aug 29 that the court will not tolerate questioning that implies that the victim’s attire had encouraged unwanted attention.
It is, however, acceptable for lawyers to ask victims of sexual crimes about their clothing if this sheds light on how the offence was committed, the judge said.
Justice Vincent Hoong made the point in a written judgment issued in dismissing the appeal of a tutor who was handed 16 months’ jail for molesting a 10-year-old pupil at the tuition centre he operated.
He said that questions to establish whether touching was above or under the victim’s clothes are necessary to provide the court with the proper context in which the offence was committed.
“However, the inquiry becomes objectionable when it is premised on, or leads to, the submission that the victim’s attire had, in some way, invited the sexual assault,” said the judge.
Managing director of law firm R.S. Solomon, Richard Siaw, said when defending clients in such cases, he would be careful to avoid the perception that he is attacking the victim’s character and morality.
“It is entirely possible to maintain a rigorous line of questioning without shaming the victim,” said the lawyer.
The lawyer said that in sexual offences, a victim’s consent is pivotal in determining whether an assailant had ill intention, or exploited the victim’s vulnerable state.
“Hence, the relevant issues are how a victim’s conduct or behaviour was perceived by the assailant that consent was either express or implicit.
“Such questions on how a victim dresses or looks are irrelevant in disproving a criminal charge,” said Siaw.
In 2012, Law Minister K. Shanmugam made clear during a speech on the Evidence (Amendment) Bill that any cross-examination of a sexual assault victim must proceed on the basis of relevance.
Among other things, the law was amended to delete a section that allowed the defence in a prosecution for rape to attack the victim’s credibility on the basis that she was “of general immoral character”.
Lawyers have courted trouble in the past with their line of questioning in sexual assault cases.
In 2018, a lawyer was suspended for five years for professional misconduct after he went on a “demeaning” line of questioning of a molestation victim, including staring at her breasts.
The lawyer had defended a student from China who was accused of brushing his forearm against the breast of a woman on board an MRT train in 2014.
While he was cross-examining the victim during the trial, the lawyer repeatedly asked the woman if she thought she was attractive and told her that he thought she was pretty.
He then commanded her to stand up and scrutinised her chest.
When the victim asked if this was necessary, the lawyer retorted that he would be asking even more insulting questions.
His client was found guilty and jailed for five months by the district judge, who rebuked the lawyer’s “unacceptable” cross-examination. - The Straits Times/ANN
