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A defence lawyer has argued an alleged rape sufferer consented to intercourse as a result of she used the “face with peeking eye” emoji (🫣) to indicate she was open to boundaries being damaged.
Liam Herbert, 31, was charged with three counts of rape after allegedly assaulting the lady throughout their first meet-up at her dwelling in Sydney’s south.
He confronted a jury trial at Sydney Downing Centre District Court docket in August presided over by Decide Mark William, which resulted in a hung jury. A retrial is scheduled for April to be presided over by Decide Christopher O’Brien.
Whereas the lady consented to some intercourse acts, she instructed Herbert within the hours earlier than the meet-up she didn’t consent to others. She additionally mentioned he ignored her telling him she was in ache and her repeated requires him to cease.
Defence barrister George Costantine argued Herbert believed he was performing out a beforehand mentioned fantasy of non-consensual intercourse.
Herbert initially denied a intercourse act to police earlier than saying it might have occurred “unintentionally”.
The girl spent three days within the witness field, the place she was questioned about her fantasies and emoji meanings and accused of fabricating the assault to re-establish contact together with her ex-boyfriend.
Herbert and the lady met on a sex-positive relationship app in late 2024. The girl mentioned she had by no means tried a fantasy of consensual non-consent (CNC), a sexual situation the place companions agree forward of time to behave out a situation the place one individual pretends to not need intercourse.
The girl instructed the court docket she understood it to be an expertise through which each events set up secure phrases and bounds. Nevertheless, she mentioned the pair by no means mentioned particulars as a result of she understood they might not be participating in CNC.
Within the days earlier than assembly up, the pair engaged in a dominant and submissive dynamic in messages, with Herbert texting her about CNC, to which she responded positively, however testified it was only a “dialog”.
“My understanding was that we weren’t going to enact any fantasies, however he would come over for intercourse,” she mentioned.
The prosecution argued utilizing common fantasy discussions as consent was “designed to mislead and get concessions”, calling the defence questioning “unfair”.
Within the hours earlier than their meet-up, Herbert requested about intercourse toys. She consented to make use of one, however mentioned, “I don’t need something [else in],” later sending the peeking emoji.
Costantine requested: “[Are] you merely saying in that emoji, ‘Nicely, let’s see what occurs’ … to go away the opening of the opportunity of [the sex act] … so you would proceed on the [CNC] fantasy?”
The girl replied “no” to all questions.
The girl buzzed Herbert into her residence block and left the door unlocked. Costantine questioned whether or not leaving the door unlocked was a part of her “rape fantasy”, although she testified it was at all times left unlocked.
Herbert arrived, and the pair had intercourse, which grew to become painful. The girl mentioned she instructed him to cease a number of occasions, the court docket heard, however he continued. She later texted him that she had “screamed” at him to cease.
They then moved to the bed room for consensual intercourse.
“I hoped that [with] the change of environment – it might develop into regular intercourse,” she mentioned.
The intercourse allegedly turned forceful as Herbert wrapped his leg round her neck. He then eliminated the intercourse toy and raped her as she instructed him to cease and tried to push him off, the court docket heard.
After he left, the lady found she was bleeding, cried and messaged buddies, who met her at hospital, the place she reported the assault to police. A forensic package revealed lacerations.
Throughout a police-monitored cellphone name between the pair, Herbert admitted to the intercourse acts.
In a police interview, nonetheless, Herbert agreed she had set a boundary relating to the intercourse toy and intercourse act, and denied the intercourse act.
In a second interview after being proven the forensic proof, Herbert mentioned the intercourse act might have occurred “unintentionally”.
The girl instructed the court docket she feared she wouldn’t be believed as a result of it began consensually.
Help is obtainable from the Nationwide Sexual Assault, Home Household Violence Counselling Service at 1800RESPECT (1800 737 732) or the Males’s Referral Service on 1300 766 491.
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CORRECTION
A earlier model of this text listed Decide Christopher O’Brien because the presiding choose for the hung jury trial. He’ll as an alternative preside over the retrial.
Amber Schultz is a criminal offense and justice reporter with The Sydney Morning Herald.Join through X or e-mail.