Barrister’s warning: How #MeToo could be you, too

In May 2022 barrister Tom Molomby defended a young man accused of rape. This is Molomby’s account of the trial.

Barrister Tom Molomby proved Jacob’s accuser had made false allegations of rape.

She was nineteen, he was eighteen. In 2019 they both were first year students at university. Both were residents in the same university college. They met during orientation activities late in February. They soon developed a close relationship, and spent most nights together in bed, though without sexual activity. She told him and others that she had taken up Muslim beliefs, and did not want sex before marriage.

At about 3.30am on Tuesday 9 April 2019, she knocked at the door of a close woman friend in the college. The friend was asleep. After several minutes the friend went to the door: “...she looked really upset. She was crying really hard, she was sobbing, and then I brought her into my room.” For about ten minutes the young woman said nothing, then said that the young man had sexually assaulted her. The friend went back with her to her room, and spent the night sleeping with her.

Over the following days, the young woman told other friends, a student liaison officer, a doctor at the nearby hospital, the director of students at the college, and the college master. They all seem to have believed her. The master specifically told her so. The young man was expelled from the college. Three months later, he was charged with sexual intercourse without consent; some months later, two other such offences were added, and one offence of attempted sexual intercourse without consent.

The young woman had certainly been in his room that night. CCTV from the college showed her descending a staircase near his room at 1.15, and coming back up at 1.47.

Earlier, at around 10.00pm, he had posted a Snapchat to his friends, of whom she was one, showing an image of another student in his room with a caption “Telling me bedtime stories.” She had replied “Can I come and tell bedtime stories?” to which he had said yes, and she had said she would come.

When giving evidence at the trial, she said that she had expected some sort of social gathering in the room, but had found only the young man. She asked where the others had gone, and “he bets I can tell him better bedtime stories.” Then he told her it was his birthday, “and asked me if I was going to get or had got him a birthday present.” “...he told me that the least I could get him would be birthday sex.” She told him that he knew her religious beliefs and “I’m not going to have sex.”

To this, he told her, as he had on a previous occasion, that God was not real, and that she could do it now and repent tomorrow. “His tone of voice had changed quite distinctly from the conversation we’d had about birthday. He seemed quite demanding and stern, trying to get me to adopt a view that was different to my own.” He also said “Why do you look like a porn star but act like a virgin?” He said to her “you have five minutes to decide if you want to have sex with me or I will decide for you and I will quite literally rape you.”

She was lying on the bed, and he came and lay next to her. He held her breasts with his left hand. She pushed him backwards with her foot and said “Whoa what’s happening here. I’m not an object.” He said “You are an object and you’ve been teasing for far too long.” Then he laid his weight on her, and after a struggle, succeeded in removing her shorts and underwear, which he threw across the room. She grabbed her phone, which he took and threw against the door of the room. The cards that were with it scattered round the room.

He grabbed her wrists, got back on top of her, and tried to thrust into her, which she resisted by clenching her body. He said “Well, it’s not gonna go in if it’s not wet, is it? Make it wet.”

“He grabbed my hair and pulled me to a standing position. He said “Dribble on it” and kind of pulled me towards his penis. My mouth was shut, and he wasn’t able to put his penis in my mouth, but he had hold of my hair. He then pulled me back down, kind of towards - I was in a standing position. I couldn’t - I was half standing half kneeling by the time I was pulled. I don’t know how his penis went into my mouth, quite hard to the back of my throat.” After a very short time she pulled back.

She said “Please stop.” He said “Just let me cum,” in a demanding tone. She said “You’re not going to cum.” He said “Watch me.” He let go of her hair and pushed her back onto the bed. “He spat on his hand and he rubbed it into his penis and he put his penis in my vagina.”

She froze in shock, then started to struggle. He let go of her hands and slapped her on the face. Because he wasn’t holding her wrists any more, she managed to break free and stand up, and backed towards a wardrobe on the other side of the room.

He came across the room and pushed her by the shoulders back onto the bed, and again tried to enter her. He succeeded briefly, until she struggled. She started to cry. He said that she was too much effort, that he had basketball training at 6am. He told her to leave. She got up, collected her clothes and put them on, and collected her phone and cards. As she was leaving, he called her name and said to shut the door quietly because people were sleeping and that she should try to explain that to God.

She left and went back to her room. She said “I wanted to kill myself. I was very suicidal.” She contacted the young man on Facebook, in an exchange that she thought lasted probably ten minutes.

She then contacted her mother. “I’m very close with my mother. We are extremely close, and I felt scared. I felt alone. I was conflicted whether to contact my mother. I ended up doing so because I felt like if I didn’t, I was going to try to kill myself and I needed someone to be there for me.” “...I wanted her to know that I was extremely distressed, but I wasn’t sure I wanted her to know what had occurred. So I told my mother at this time, the accused wanted to have sex with me, that we didn’t have sex and I ran away from him.”

After the call with her mother, she knew that she really needed to be with someone. She was really worried for her welfare. At this point she went to another part of the college to a friend’s room. “I was hysterically crying, even just the way to the - her room, continued to cry. I remember she was very disoriented and confused. She’d just woken up. I sat on her bed, and I remember just crying and crying and crying. And she kept asking like “What, what’s happened” and I just for a long time I just couldn’t speak. I was just - I was extremely upset. I ended up at some point when I sort of collected myself, telling her what had occurred.”

The other woman came back to her room to sleep with her. While her friend slept, she initiated another communication with her mother on WhatsApp.

04.11 now i’ve calmed down a bit i want to speak seriously

04.11 everything i just said to you was true

04.11 (mother) Ok

04.11 but there’s more to it

04.11 (mother) Ok

04.11 i don’t know how to say it

04.11 (mother) It can’t be easy for you But I’m here

04.12 i think he assaulted me actually i know he did

04.12 (mother) Tonight?

04.12 yeah

04.12 (mother) Did he penetrate you?

04.12 yeah

04.12 he admitted it here too

04.12 Then yes he did assault you

At this point she sent a screenshot of part of the earlier exchange with the young man, where he said “..or at least the whole situation just didn’t feel relaxed.the difference with my other partners was we both had heaps of foreplay all leading to sex, not on and off and you being unsure”

04.12 click on it

04.13 the first message

04.13 i told him i didn’t want to have sex

04.13 and he said to me

04.13 ’you have five minutes to decide whether you want to have sex or else i willliterally rape you’

04.14 i pushed him with my foot

04.14 and he said

04.14 no i said

04.14 i’m not an object

04.14 and then he said

04.14 you are an object

04.14 (mother) That’s not acceptable

04.14 i don’t really know what to say

04.14 he also said

04.15 don’t come to my birthday because i WILL be fucking other girls

04.15 and he slapped me round the face when i didn’t do as he asked

04.15 umm i didn’t want to tell you

04.16 (mother) The “sleep with other girls” is just petty But slapping you is definitely out of order

04.16 i feel so sick

04.16 (mother) I’m glad you did. It’s best that we talk it through together

04.17 (mother) Has (friend’s name) gone back to sleep?

04.17 yeah

04.17 in my bed

04.17 (mother) Oh dear

04.17 (mother ) At least you kind of have company

04.17 it’s ok at least she’s here

04.17 yep

04.17 (mother) I’m glad she’s there

04.17 mum you never think it will happen to you until it happens to you

04.17 (mother) Does she know the full story

04.18 (mother) Yes I know

04.18 i don’t know what to do

04.18 (mother) I guess that’s what (friend’s) speech was trying to say (the friend had given a speech to other students about consent)

04.18 (mother) I don’t think you should rush to do anything

04.19 (mother) If you have a notebook, write everything down in as much detail as you can. Then you have a detailed account if you want to take action tomorrow or at a later date

04.20 read these texts

At this point, she included screenshots from an exchange on 15 March with the young man, in which he said “what if i grabbed your ass” to which she replied “well without consent that’s just sexual harassment” and he said “without consent. it only counts as grabbing your ass if there’s actually something to grab.” She said “ woahhhhhh that’s mean wtf” He said “so you wouldn’t consent. should i try it and see what happens? you only live once. what happens if you grab (her full name)’s ass”

04.22 he says the words ‘without consent’ twice

04.22 bit weird?

04.24 (mother) Yes, but nothing that could be used in a prosecution there (I don’t think).

04.24 although this probably could

At this point, another screenshot from the exchange after she left his room, including the words “i don’t think it helped that i had to force you into sex.”

04.24 (mother) Yes that one could

04.25 (mother) Was he drunk? Had he taken drugs?

04.25 no he was sober

04.26 (mother) It’s sad. He should never have treated you like that.

04.26 (mother) Does (friend) think you should report him?

04.26 she thinks i should ask the RA

04.27 but i think he has a legal duty to tell someone

04.27 (mother) Who/what is that?

04.27 and the RA is (young man)’s older brother’s best friend

04.27 resident advisor

04.27 (mother) Yes he’d have to tell someone

04.27 so i cant do that

04.28 (mother) You can if you want to

04.28 i don’t want to

04.28 (mother) But might not make you feel better

04.28 i don’t want to ruin (young man)’s life

04.28 i like him

04.28 he’s just fucked in the head

04.28 (mother) I think you’re a lovely person

04.29 i am very damaged though

04.29 not sure where to go from here

04.29 (mother) Most teenage boys can only think with their dick

04.29 i do feel violated

04.29 (mother) That will pass (if you want it to)

04.30 (mother) If you think you might want to change your mind and tell someone, get a notebook and write everything down

04.31 okay i will

04.31 maybe i should sleep now though

04.31 i have class at 9am

04.31 (mother) If you’re sure you’d rather deal with it privately, it may still help to write it down.

04.31 i don’t know what i want i feel very weird

04.33 (mother) No need to decide now. It will sort itself out over the next couple of days and you’ll either decide “yes I want to report him” or “no, for me, I’m better dealing with this myself.”

04.33 (mother) Go to sleep now

04.33 okay

04.33 goodnight

04.34 (mother) Goodnight

Later that morning, the young woman went to the university

counselling service, where she spoke to a counsellor, then to the nearby hospital. However, she left after being told that there were three people ahead of her, and that she might have to wait for nine hours.

On return to the college, she spoke to the resident advisor, who told her to speak to the master of the college. She did so soon afterwards that day.

Then that evening, she told another student what had occurred.

The next afternoon, she returned to the hospital, and was examined by a doctor.

On 23 April, the young man was expelled from the college. On

the same day, the young woman left Australia to join her parents. She returned in May, and on 14, 17 and 18 May, made a statement to police.

On 24 June, the young man was charged with one count of sexual intercourse without consent. He was released on bail. Other counts were added in October.

The case against him was formidable. The young woman had complained within a short time of the events, persistently and emotionally. Her performance in court was one of the most emotional I have seen. She wept at times uncontrollably, asked for adjournment because she felt faint, reacted to adverse questions with scorn, disbelief and indignation. She was combative to the end. After she left the witness box, she sat at the back of the court during most of the remaining evidence.

The police wanted to interview the young man, but his solicitor had advised him not to give an interview. However, the prosecution in the end had his account of events from another source, because six days after 9 April, one of the young woman’s friends engineered a conversation with him which she surreptitiously recorded.

The conversation was rambling and unstructured, but the essence of his account was exactly what he was later to say in evidence. It was a fundamentally different account from that of the young woman.

He said: “she literally outright said to me the intention of her coming to my room was so that she could have sex with me.” He had already decided to end the association between them, and they hadn’t been in contact for several days. “the reason why I decided that, like, we wouldn’t work out was because of the way that she deals with conflict...whenever something happens, I’m always wrong and she’s always right.” When she said that she had come for sex “I wasn’t in a position where I was able to, like, say no. Because I still felt attracted to her.” “And, like, this is really awkward, but, like, because of everything that had happened, I just, like, I couldn’t, like ejaculate.” “She did but I didn’t.” “I said to her multiple times, do you want me to stop? And then

she said No. Or she’ll say, Yes, and then I’ll stop and she’ll be like, Why did you stop?”

“And then she just said, like, What the fuck are you doing? What’s wrong with you, don’t you like me? Do you hate me?” “...she was just, she was really, really, really angry. she started yelling at me. And, like, she said, like, it’s, like, that I’m a piece of shit and I treat her like shit.” ...I said “Do you want to try again?” and she’s like, “if you’re not gunna like, cum, like, don’t bother.” “Her attitude was just like, You hate me. Like, like. Do you not feel attracted to me?” He talked her into trying again, still unsuccessfully.

He also said that this occasion was the second on which they’d had sex. On both occasions the young woman had said that it was painful.

At the trial, he identified the night in late March on which this earlier occasion had occurred.

This issue was a prime test of the young woman’s believability. She denied that they had sex on that night. She said that she had initially agreed to have sex: “…we were kind of I’d say grinding on each other, I wasn’t opposed to what was happening at that time. I then realised. He pulled my pants to the side and tried to enter and I freaked out, I really freaked out, and said “I can’t do this,” and he said to me, “If you

were (another young woman), you would have fucked me by now”...called me boring, I asked him to leave, and he left and he slammed the door behind him.”

Contrary to her account, one of her male friends gave evidence that she had told him that on one occasion near the end of March she had intercourse with the young man. “I remember her saying words to the effect of it was awkward but not necessarily unenjoyable.”

The master of the college, to whom the young woman had spoken on the afternoon of 9 April, said that the next day, the young woman came back with her friend, and said “This wasn’t the first time I had sex with (young man). We had sex once before in my room. It was consensual, it hurt, and I didn’t like it. I just wanted to tell you so that you know everything.” At the trial, the young woman denied that she had told the master this.

A month later, on 10 May, she had sent the master a message which included: “Me and (young man) had hooked up once in the past leading

up to this and that’s the only time (which was also a very uncomfortable scenario in itself).” At the trial, her explanation for this was that “hooked up” meant kissing (which on her own evidence they had done not only once but very many times).

Her account of other aspects of events changed remarkably. To her friend to whom she went in apparent distress on the night, she said “Everything was going okay, we were in bed kissing and he asked to go further.” A stark contrast with her evidence at trial about birthday sex. In another account on the same day, to the master of the college, she said that they were head to toe in the bed, thereby excluding kissing.

To the university counsellor on 9 April, she said that at the end, the young man prevented her leaving. Quite a contrast to telling her to leave.

The very experienced doctor who examined her at the hospital had taken detailed notes. To her the young woman said that the remark “Why do you look like a porn star and act like a virgin?” was made after she had got off the bed and gone to the other side of the room, a very different moment from her version at the trial, where it was part of the initial discussion, before any physical action.

She also told the doctor that she was slapped before her shorts were taken off, being near the start of the incident. To the master of

the college, she said that the slap occurred while she was near the wardrobe on the other side of the room, after she had broken away from him. At the trial, she said that the slap happened not long before she broke free. A travelling slap.

The most revealing aberration in her accounts to others was on the evening of 9 April. Another male student saw her and her friend sitting separately in the dining room, looking as though they had been crying. He noticed that she had a hospital wristband, and asked if she was okay. She said “Never mind”, but he persisted, asking if something had happened between her and the young man. She said that the

young man had assaulted her. A little later that evening, she told him: “So she had gone to (young man)’s room. She didn’t intend to have sex with him. She tried to get up and leave at some point, but as she was walking towards the door, he pulled her to the ground. She said that he forced his penis into her mouth and then penetrated her while she was on the floor.”

She also told this friend that the young man had “split the skin around my vagina” and that she had to have it glued together at the hospital.

The truly remarkable aspect of this is that at that time she had not been examined or treated at the hospital. Though she had gone there, she had left after being told that there could be a nine hour wait. She was not examined by the doctor until the following day. The doctor took very detailed notes. The young woman had no such injury, and there had been no treatment for any injury. The doctor in fact agreed that the minor abrasions that she found could easily have been the result of consensual sex. The young woman’s account to her friend was sheer fantasy.

While the general account of how she had come to be in the young man’s room was agreed, there was a puzzling lapse in time. She had seen his Snapchat about bedtime stories while out with friends

about 10.00 to 10.30pm. She was back in her room by 11.00pm. Yet she didn’t go to his room until 1.15am. Her explanation was “I had a shower, I did other things, I wasn’t set on going to the room.” The young man in his evidence said that when she contacted him he said that he was planning to go to bed early because he had basketball training the next morning. She should have known that anyway. Basketball training at 6.00am on a Tuesday morning was mentioned twice in the previous Facebook communications between them, once by him (16 March) and once by her (23 March).

She said that she didn’t know where his room was, and he guided her there on Snapchat. He on the other hand said that he was asleep when she came to his room.

But it was not true that she didn’t know where his room was. In the Facebook exchanges, he sent her on 19 March a short video showing how to get to his room, and there was a discussion about which doorway was his, with her saying “THERE’S A ROOM RIGHT THERE”, and his explaining “It’s a fire door.”

The young woman said that she was crying when she got up and got dressed, and still crying during the Facebook exchange. However, the CCTV from the college did not show any tears or sign of crying on her face as she returned to her room.

During the days after 9 April, when to others she appeared upset and withdrawn, she activated her Tinder account at 00.16 on Thursday 11

April. At 14.45 she engaged in an exchange that lasted until 15.18. At

17.14 she responded to “Hey there darling” with “hey cutie.” At 19.47 she began an exchange that lasted until 20.28. The young woman said that she had no memory of any of this.

However, by far the most dramatic aspect of the case was the Facebook exchange which occurred shortly after the young woman returned to her room. During the days in May 2019 when she made her statement to the police, the entire content of her phone was downloaded. At the same time, her exchanges with the young man were downloaded from her Facebook account. This exchange was part of that.

It began at 1.54 with the young woman simply calling his name. At 1.57 he replied “What’s up?”

She: everything

He: I think we dont have good sexual chemistry She: okay

He: im sorry

my dick legt hurts

and i cant even get it hard now even when im truna jack off

She: dont say anything else He: ok

She: i feel awful enough wow

He: im sorry

She: it’s ok i’ll just cry myself to sleep He: dont cry

She: i actually dont know what to do lmao i’ve never felt this shit

like ever

idk why i’m telling you this

He: is there anything i can do

Questions swarm around this. There is no obvious reason why a woman would contact the person who had just raped her, except perhaps to lodge a protest from a safe distance. In this case there are the added factors that he had told her that she was too much effort and that she should leave because he had basketball training.

Q. You say that you just left a man who had raped you and who was angry. What are you hoping to get out of him by messaging him?

A. I was extremely stressed at the time and I didn’t know what to do. I was hoping there was some sort of justification for his actions.

What sense does it make to hope that someone who has raped you has a justification for his actions? What sort of justification could there be?

I suggested to the jury to consider whether it would make sense to advise someone: “Look, if anyone ever beats you up, make sure that you get their phone number before you leave, because you might want to ring them up to see if they can justify what they’ve done.”

The young woman herself appears to have realised that this explanation was absurd. Seven answers later she said: “ I didn’t know what I was intending with that message, and I still question myself to this day.” A complete change of direction. She then said: “I believe I messaged him because he forced me to have sex as he later says in the same conversation.” That is saying: “I messaged him because he raped me,” the very reason that any normal person would not message him, and amounts to no explanation at all.

The exchange needs to be assessed also from the young man’s point of view. If he had just raped her, he already knew the answer to his question: “What’s up?” And the natural reply would have been “You know very well,” or “What you just did.”

The young man’s statement “I don’t think we have good sexual chemistry,” makes no sense at all in a scenario of rape. She agreed that there’s no scope for sexual chemistry in a scenario of rape.

She said of her response “okay” that “I wanted to end the conversation because clearly he wasn’t understanding what I was saying.” She said: “With the “okay” I was hoping he wouldn’t respond.”

Q. Well, if you wanted to end the conversation, you just dial out, don’t you?

A. That’s your opinion.

Not only the “sexual chemistry” remark, but the whole exchange on both sides makes no sense in the context of the young woman being a victim of rape. It makes very good sense, however, in the scenario described by the young man, in which the result of the sexual activity was eventual frustration and on her part, an angry departure.

The exchange continued: (adding times that did not appear in the version produced by the prosecution)

2.07 He: i don’t think it helped that i had to force you into sex or at least the whole situation didn’t feel relaxed

2.07 She: i have just never been and never thought i would be in this situation

2.07 He: the difference with my other partners was we both had heaps of foreplay all leading to sex

not on and off and you being unsure

2.07 She: yeh but (name)

2.07 He: i think its my fault

2.07 She: i tell u time and time again not to do it

2.07 He: for tryna convince u

2.09 She: i’m wholly embarrassed i won’t bother you again

dw

2.12He: im worried

im not gonna bother prying tell me or dont

2.13She: nah i just i’m sorry

that’s all

2.15 He: im sorry too

This part of the exchange terminated at 2.15. The young woman had later shown the statement “i dont think it helped that i had to force you into sex” to many of those to whom she had told her story. The young man in his evidence, as in the surreptitiously recorded conversation on 15 April, insisted that he had not forced her into anything. He explained in court that he had compiled a sequence of entries on the run within the same minute, so that the full statement was “ I don’t think it helped that i had to force you into sex or at least the whole situation didn’t feel relaxed, the difference with my other partners was we both had heaps of foreplay all leading to sex, not on and off and you being unsure. I think it’s my fault for tryna convince u.”

He said: “I tried to convince her to try again when we reached that point where I wasn’t able to ejaculate and then we both sort of stopped and then she started to get agitated or angry and then after that she sort of went back and forth where I was saying you know -she was saying, “you know, it’s not going to work, don’t bother,” and I was saying, “No, like I still like you. I think you’re attractive. Can we try again?” and we sort of went back and forth like that until eventually she said “Okay, you know, let’s try again,” and, then, obviously we went again for five or ten seconds and after that we didn’t continue.”

The most significant aspect of this exchange by far, and probably the most important evidence in the case, was its next section. As downloaded from the young woman’s account, it appeared to run on directly from the previous section, but in fact began after a pause of forty minutes:

2.58 He: i just hope ur aight all is good on my end

2.59 She: i am a literal mess i beg u

2.59 He: i have to get to sleep we can talk tmoz

2.59 She: night

2.59 He: i just had a shower haha

u should have one

3.00 She: okay

3.00 He: do you need anything

3.00 She: nah dw

The addition of the times adds a dimension entirely missing from the version produced by the prosecution. Instead of a single sequence, there were two, with the second beginning forty minutes after the first finished. It was during this pause that the young woman contacted her mother the first time. The fact of the young man communicating with her in an apparently sympathetic way over more than an hour rather contradicts her portrayal of his telling her to leave because he had basketball training in the morning.

The version of this exchange produced by the prosecution had been downloaded from the young woman’s Facebook account in May 2019 with her co-operation. The young man’s Facebook account contained a rather different version, with very significant parts that were missing from the other.

The parts missing were utterly destructive of her story. Messages sent by Facebook can be deleted, and the young woman had used this function sometimes during other exchanges with the young man. If the deletion is made within a few minutes of the message being sent, it has the effect of removing the message from the accounts of both the sender and the receiver, and replacing it with a note “ X deleted a message.” This can be seen by both parties.

However, the deletion function works in a different way if more time has elapsed. Then it removes the message from the sender’s account without leaving any trace, but not from the receiver’s account. After being asked about the deletion function as she had used in the exchanges, she was asked: “Is that the only way of the deletion function working of which you’re aware?” to which she replied: “I don’t know. This is how I use it, yes, as you can see.”

There was a small but very telling deletion from the first sequence. Preceding “i’m wholly embarrassed” at 2.09 was “Sorry im such a let

down.” This is wholly inconsistent with the attitude of someone talking to her rapist, but very much an echo of recognition of sexual failure. At 2.08 was an entry “(young woman) removed a message,” and between “i wont bother u again” and “dw”, he said “what was the deleted message” to which the “dw” (don’t worry) was the reply.

The major, indeed, spectacular deletion came at the start of the second sequence at 2.55. To appreciate its impact it helps to remember that the young woman placed considerable emphasis on the undoubted fact that she had told the young man and people generally that she followed Muslim beliefs and therefore was not in favour of sex before marriage.

One also needs to recall the young man’s reference in the early part of this exchange to sexual chemistry.

The young woman opened by saying: “i don’t know how to say this or whether i should say it at all but i just want you to know something, it’s not our sexual chemistry and it’s not about my religion, it’s about something that happened when I was 13 and nothing has been the same since, please understand that...i’m sorry”

He replied: im sorry that happened

She responded: nah i don’t need you to feel bad that’s not what i’m trying to do

She then sent him a screenshot from her recent exchange with her mother.

She had tried to obscure some of the words, but a clean version later became available. It showed her saying to her mother: “i don’t know what to do. It’s been this way ever since O--- ruined my life.” Her mother’s reply was: “Two options: (1) be honest. Say you had a panic attack due to something that happened with an ex boyfriend a long time ago (2) lie. Say you felt guilty about(the next lines are out of the

frame) (it should be noted that this was her mother’s response to being told by the young woman that she had run away).

The young woman then said: “I just always go with option two, and i think it’s time i tell the truth for once.” To this the young man said: “im glad you were honest.”

The whole of this part of the second sequence was missing from the version downloaded from the young woman’s Facebook account, and

therefore had been deliberately deleted. She was the only person who could have done that.

There were then some small but telling deletions from what followed. After “im glad you were honest” the young man sent “i just hope ur aight”(presumably meaning all right), which appeared in the young woman’s version as the opening of the second sequence, then “all is good on my end.” Her response to this was deleted: “please dont tell anyone”, but what followed “i am a literal mess” remained. Then, presumably by oversight, also remained, totally out of context: “i beg u” but his reply “i wont” was deleted. As was her final statement, in reference to it being his birthday: “have a good night romp tomorrow.”

The defence case was that the true full version of this exchange contradicted her story of rape, and entirely supported the young man’s account. She had deleted crucial sections to try to make it support her story.

Strangely enough, there was another relevant Facebook exchange at the same time. When the young woman left his room, the young man felt insecure and upset, and posted a message in his group of high school friends: “is anyone awake for a chat?”

A friend replied straight away. The exchange covered other topics as well. Key parts relating to the events of that night were:

Young man: so there’s this girl (name) u know might have heard

And so we ended up having sex a week or two ago and it was pretty much the worst sex of my life

Friend: So everything else but the touchdown?

Young man: And we ended up stopping with me not cumming

And we had heaps of ups and downs its a long story but long story short i ‘broke up with her’ last wednesday even though we werent dating

we were just a thing

and tonight she booty called me and we had sex again

and no matter what happened i just could not cum and she got really mad at me

and it hurts real bad but she got mad and she pretty much just elft

Friend: There’s no reason for her to be mad what the fuck

Young man: but she says ‘if i see you talking to another chick ill go psycho’

idk what to do

i feel trapped

and she’s making me feel like shit

she’s like ‘am i unnattractive’ but i legit dont know whats wrong just i know somethin aint right

The exchange with the friend began at 1.50 and had got to this point before the young man replied at 1.57 to the call from the young woman with “What’s up?” Until 2.15 he was running two

exchanges simultaneously. He concluded with the friend at 2.20. There could not have been stronger contemporary support for his account of what happened.

This young man could have been in deep trouble if the case had happened in another age when there were no social media, or the communications hadn’t been recorded, or just hadn’t happened. What if she hadn’t chosen to call him on Facebook, and he hadn’t received a reply from his high school friends’ group?

There’s a strong, natural and entirely reasonable tendency in such situations to ask “Why did she do it?” Sometimes, but rarely, one finds an answer to that question. But it forms no rational part of assessing whether the story is true or not. People often tell lies where there is no apparent reason. The fact that one can’t find a reason does not mean that the demonstrable lie is not a lie.

In this case, it’s likely that the trauma of the young woman’s experience as a 13 year- old, whatever it was, played a major role. In her brief moment of going with option one, she said so herself. To live with major trauma through the formative years from 13 to 19 could have a devastating impact.

Nevertheless, a lot remains without explanation. The young woman had known the young man for less than two months. It’s impossible to think of any reason why she could rationally have wanted to destroy his life by sending him to prison for many years. She knew that would be the consequence; she said to her mother; “I don’t want to ruin (his) life.”

One of the problems in looking for explanations is that one tends to do it within the parameters of one’s own world. The absence of an explanation that satisfies the questioner does not mean that there was no explanation that satisfied the very different mentality of the other person.

The courts sustain a community myth. They proceed on the assumption that the demeanour of a person, the way the person behaves in court, is of great importance in assessing whether the truth is being told. We all like to think we can do it, and on occasions in real life we need to do it, but when we do it, we are usually judging on probability or with a bit of guesswork. It can mean something when we know the other person, and their normal manners of behaviour. But a witness in court is almost always a stranger. Those present have no knowledge of how the person behaves ordinarily. There are plausible and charming conmen, and honest people who are hesitant, tentative, or easily confused.

Stereotypes are often wrong, and the time of an appearance in the witness box, particularly when there are other causes of stress around, is often not enough to sort them out.

One aspect that confuses thinking on this issue is that there certainly are cases where one can see that a person is lying - open deviousness, ducking and weaving, self-contradiction, making up a story on the run.

But at the other end of the spectrum, there are no obvious cases for telling the truth. A person may have the perfect appearance of telling the truth, yet be telling lies. The frequent demonstration of that is the witness who gives evidence in the same manner throughout, yet tells some demonstrable lies. The manner may be confident and assured, or diffident and shy, or anything in between, the point is that all the evidence, truth and lies, is given in the same manner. One simply cannot decide rationally, in such a case, based on the demeanour of the person, what is truth and what is lies.

What the young woman did was calculating and cruel. She side-tracked the young man’s life for three years at least. He was suspended from the college on 20 April, and had to move out on that day. His parents were away, and he had to spend several nights on a friend’s couch. Soon afterwards he was suspended from the university, and prohibited from entry. He was unable to explain his position to other students, while the young woman’s story spread around. This disability continued because he had to change universities and courses. Even today, many students influenced against him by hearing her story probably have no idea of the result of the case, or what was revealed during it. He had to live for three years knowing that he was under unjustified suspicion.

The young woman showed a high level of deviousness and inventiveness. In her exchange with her mother, she even went so far as

to express reluctance to ruin the young man’s life. A spark of genius in her contrivance. She persisted in her false story over years. In deleting parts of the Facebook exchange, she falsified evidence.

The aspect of the case that resounds is her utterly ruthless, remorseless and shameless attitude. One wonders how such people come to be. The enormity of what they are trying to do to someone else does not deflect them. Often they carry no warning signs. Because the revelation of most complainants’ identities is prohibited, such cases get little publicity and are not well documented. From my own experience, I suspect that there are more than most people believe.

The old common law required a judge to warn a jury in a rape case of the danger of convicting without corroboration. That direction was rightly criticised and abandoned. It assumed some special unreliability in women, and some special risk in rape cases. On both counts it was fundamentally wrong. However, behind it was some good sense, though misapplied. The correct direction would have been, in every type of case, in relation to every type of witness, that there is a danger in convicting on the uncorroborated evidence of a single person.

There are victims of false complaints in every type of crime. The nature of sexual activity means that sex cases involve more frequently the word of one person against another.

It is easy to forget that there are two categories of victims of crime, a larger one of people who suffer violence, humiliation and loss at the hands of others, and a smaller one of people who are falsely accused of having committed such acts. The victims in the first category

usually attract sympathy. The victims in the second category, when a serious crime is involved, are despised undeservedly for life.

It will never be easy to resolve the contradictory interests of the two categories.

Fortunately, at the end of the young man’s case, the jury delivered four verdicts of acquittal, each announced by the foreman emphatically, and apparently with the agreement of the whole jury: “NOT guilty.”

I obtained a certificate for costs, for which the judge certified that if what was known at the end of the trial had been known at the start, it would not have been reasonable to prosecute.

If the young woman ever decides to try the same stunt against someone else, the defence will not be able to use her behaviour in the young man’s case against her. That is the result of a badly drafted law whose flaw has been known for nearly thirty years but never corrected.

Furthermore, because the protection of her identity continues after the case is over, despite having made a false complaint, the next person wouldn’t have any way of knowing her history.

Tom Molomby SC defended the young man at his trial in May 2022. The law referred to is the law of New South Wales.