Lawyers say prosecutors should not be shamed when defending clients in sexual assault cases

SINGAPORE – When a former Grab driver was accused of sexually assaulting a drunk passenger, his lawyer had to prove that the man believed the passenger had given her consent by kissing him and straddling him..

This meant that audio recordings and descriptions of the sexual acts had to be reviewed during the trial when the plaintiff was questioned.

Even though the prosecution argued that the woman was not in a position to give her consent due to her state of intoxication, the outward manifestations of her appearance and behavior were relevant.

The High Court judge said these factors led the driver to believe in good faith that she had given valid consent.

Five years after the charges were brought, the former driver was acquitted of the charges.

Lawyers say that when they defend their clients in sexual assault cases, the focus of their questions is on relevance. That can mean how the act allegedly occurred, rather than what the victim was dressed or looked like.

In the case involving the former Grab driver, lawyer Mohamed Fazal Abd Hamid of IRB Law said the court took several aspects into account, such as the fact that the woman had situational awareness and the ability to make decisions even if she did not give verbal consent.

“These issues have been discussed and clarified during the trial. Therefore, defamation of the victim should never be part of the case theory pursued by the lawyer during the trial,” said Mr Fazal, who has nothing to do with the case.

He said the victim's character or sexual history, if any, were not relevant to the trial at all.

“The victim must not be asked questions in cross-examination which explicitly or implicitly aim to force the victim into a particular role based on his or her character or sexual past,” he added.

Ms. Ng Kai Ling, Deputy Director at LIMN Law Corporation, illustrated the relevance with another example.

She said that if someone alleges she was harassed by a stranger on a train, the plaintiff's sexual history is irrelevant. However, it may be relevant if the defendant had a romantic relationship with the alleged victim.

In the second scenario, there would be more tolerance for questions about the nature of the relationship between the two, such as whether there was close contact before.

She stated that these questions were relevant to the question of whether the alleged victim could have given valid consent or whether it could be assumed that such consent had been given.

“Lawyers therefore have an important role to play in helping their clients decide what is relevant and what is irrelevant based on the facts and circumstances of the case and in advising them on that,” Ms Ng said.

The question of relevance arose after a Supreme Court judge said on August 29 that the court would not tolerate questioning that suggested that the victim's clothing had attracted unwanted attention.