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 Mr 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.
Ms 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 Ms 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.