Oliver Saxby QC today secured the acquittal of a 21 year old university student of previous good character who had been standing trial on an allegation of rape. The complainant was a fellow student and the incident giving rise to the allegation had taken place on campus, in university accommodation.
The principal issue was consent/reasonable belief in consent and the 8-day trial involved complex medical evidence (relating to the injuries sustained by the complainant) and toxicological opinion (on the effects of a drug, 25i, that they had both taken on the evening in question). At least some of the incident had been witnessed by other students.
The jury were in retirement for just over 2 hours before returning a unanimous verdict of not guilty.
Oliver Saxby QC subsequently wrote a short case study on this case which is below:-
Case Study: R v MC, 2015
‘D’ was a 21-year old university maths student. Born and brought up in Bristol, he had no convictions, cautions or reprimands and was of previous good character. He was charged with a single offence of rape. The complainant, ‘C’, was a fellow student. The rape was alleged to have happened on campus.
D and C had met at university. They became friends. In time their relationship become sexual, albeit on an irregular, casual basis. Each used cannabis from time to time; and on the evening in question they had both taken a small amount of a drug known as ‘25i’. The pair were in D’s small room, situated with a number of other student rooms off a corridor in one of the university accommodation blocks. It was around midnight, and students were beginning to return to the accommodation block from nights out.
The Crown’s Opening took the story up: “In his room, D performed oral sex on C. His behaviour then changed. He became violent towards C. He had vaginal sex with her without her consent. She was screaming, to the extent that other students who were nearby came into the room where they were. D was behaving very strangely. This may have been due to his consumption of drugs…”.
One of the students spoke of seeing D actually on C. They were both naked. C could be heard shouting ‘please, help me, please, get him off me’. As other students appeared, they were able to pull D off C but he continued to try and get at her. He was shouting things like ‘let me at her’ and ‘she wants it’. He was out of control. Soon thereafter the police arrived. One of them was wearing a head-cam which recorded their attempts to restrain D. On the footage, he can be seen shouting aggressively that he wanted to ‘fuck her until she bleeds’.
He was detained and taken to the police station. There, he issued a Prepared Statement asserting that the sexual contact had been consensual and in keeping with the at times violent and aggressive sex they had begun to experiment with. Thereafter he answered ‘no comment’ to all questions asked.
A subsequent medical examination revealed that C had sustained a number of injuries – summarised by the Crown as follows: “…numerous bruises, scratches and superficial skin erosions to the arms, legs, chest and back as well as friction burns and skin redness on elbows, buttocks and upper back… A genital examination showed a 1cm tear originating at the lowest point of the vaginal opening… This looked like a fresh tear through the skin…. Conclusions: 1) Bruises on knees and arms are most likely caused by application of blunt force or gripping against resistance. 2) Redness of the skin and friction type marks at elbows, back and buttocks are compatible with reported carpet burns. 3) The genital injury is most likely caused by forced vaginal penetration. The amount of force needed to inflict such injury makes consensual vaginal penetration unlikely…”.
Toxicological analysis showed the presence of 25i – a hallucinogenic similar to LSD – in both C and D’s blood: “There is limited scientific information on the effects of 251-NBOMe but effects reported include euphoria, mental stimulation, increased energy, feelings of empathy, visual distortion or hallucinations, altered perception of time and increased awareness of music. Adverse effects reported include unusual body sensations, confusion, depersonalisation, derealisation, nausea, anxiety, paranoia, fear and seizures. The effects are reported to last between 3 and 10 hours”.
Plainly the case was a tricky one to defend. First and foremost, there was a detailed account from C – given to the police during a lengthy and compelling ABE interview itself hot on the heels of her almost immediate ‘recent complaint’. Second, there was the eye-witness evidence of the students who had heard the commotion and in effect caught D ‘in the act’, naked, forcing himself on C. Third, there were C’s injuries – on the face of it, firmly probative of her allegations. Fourth, there was the footage of D’s demeanour in the immediate aftermath – again, consistent with how C was saying he had been in the room, when he was forcing himself on her. And finally, there was his reluctance to answer questions in interview (beyond the Prepared Statement).
Notwithstanding all of which, D was found not guilty by the jury. Central to our presentation of his case was a complete acceptance that his behaviour after the event – as so graphically evidenced by the head-cam footage – had been utterly shameful, completely inexcusable and at times quite disturbing. There was no scope for pretending otherwise. But this realistic approach provided a more credible foundation for the assertion that, abhorrent as it was, in fact his behaviour after the event might have been triggered by the sudden and unexpected intrusion of the other students, who had forcibly removed him from the room. After all, we said, the drugs he had taken will have made him paranoid – and susceptible to becoming agitated. In other words, we submitted, how he was on the footage might not necessarily have been how he had been in the room with C, earlier. This was plainly a contention that found favour with the jury.
Secondly, of course, careful questioning of the students who entered the room was required. It transpired that there was a degree of retrospective overlay in their accounts, with recollections affected by the narrative that had very quickly developed amongst students – principally on the basis of D’s behaviour in the immediate aftermath – namely that he had subjected C to a violent rape, that he had been caught in the act and so on. Separating overlay and opinion from accurate memory, it became clear that the evidence of the eye-witnesses was not as helpful to the Crown as first thought. For instance, a number had not intervened when, had they been witnessing rape, they accepted they surely would have done.
Thirdly, it was necessary to combat and nullify the potentially damaging medical evidence. A good knowledge of this area of forensic medicine was essential; and ultimately the Crown’s expert was constrained to accept that all of the injuries concerned were consistent with the rough consensual sex D was asserting had taken place.
Finally, there was the cross-examination of the complainant, C. A number of section 41 issues arose; and following legal argument, we were permitted to ask various questions relating to past sexual experience. Allied to this, we were able to deploy some useful phone and Facebook traffic; and of course there was the effect on C of the drugs she had voluntarily taken with D.
Defending those charged with serious sexual offences is rarely straightforward. The law has redressed various imbalances – in terms of the manner in which a complainant is cross-examined, the substance of the defence case and of course directions given to the jury in summing up designed to debunk potentially entrenched ‘rape’ myths. As a result, if a defence is to succeed, it needs to be presented realistically, skilfully and economically. This was our approach in D’s case; and it allowed him to return to his studies when a sentence of 6-8 years imprisonment would have been imposed in the event of a conviction.