World · East Asia & Pacific · 20 hrs ago
Defence argues emoji showed consent in Sydney rape case
Liam Herbert, 31, is charged with three counts of rape over an alleged assault at a woman’s home in Sydney in late 2024.
The woman told the court that she had agreed to some sexual activity but not to other acts, and that Herbert continued after she told him to stop.
His defence lawyer argued that messages about fantasies and a “face with peeking eye” emoji suggested she was open to a fantasy involving sex without consent.
The woman said they had not agreed to act out that fantasy, and that she used the emoji after saying she did not want another act.
The case centres on whether the pair had agreed to the acts in question; discussing a fantasy is not, by itself, the same as agreeing to carry it out.
Herbert’s first jury trial ended without a verdict, and a retrial is scheduled for April.
The woman also told the court that the defence’s questions about her fantasies and the emoji were offensive.
A defence lawyer argued that an emoji sent before a meetup implied consent in a Sydney rape case.
Liam Herbert, 31, faces three counts of rape over an alleged assault during his first meetup with the woman at her home in Sydney’s south.
The woman said she told Herbert to stop multiple times and that he continued.
Herbert’s trial at Sydney Downing Centre District Court in August ended with a hung jury.
A retrial is scheduled for April.
- Who
- Liam Herbert, 31, is charged; the complainant is a woman whose name was not stated.
- What
- Herbert faces three counts of rape. His defence argued that an emoji implied consent.
- When
- The pair met in late 2024. The trial took place in August, and a retrial is scheduled for April.
- Where
- The alleged assault took place at the woman’s home in Sydney’s south. The trial was at Sydney Downing Centre District Court.
- Why
- The defence argued Herbert believed he was acting out a previously discussed fantasy of non-consensual sex. The woman said they had not agreed to enact such a fantasy.
Herbert’s defence
Prosecution
Consent and prior discussions
Herbert’s defence
The defence argued Herbert believed he was acting out a previously discussed fantasy and that the emoji implied openness to the act.
Prosecution
The prosecution argued that using general fantasy discussions as consent was designed to mislead and get concessions.
My understanding was that we weren’t going to enact any fantasies, but he would come over for sex
offensive
I was hoping that [with] the change of atmosphere – it would become normal sex
Herbert and the woman met on a sex-positive dating app.
Herbert asked about sex toys, and the woman sent the peeking-eye emoji after saying she did not want anything else in.
Herbert’s trial at Sydney Downing Centre District Court resulted in a hung jury.
A retrial is scheduled.
- Defendant
- Liam Herbert, 31
- Charges
- Three counts of rape
- Location
- Woman’s home in Sydney’s south
- Emoji
- Face with peeking eye (🫣)
- Trial outcome
- Hung jury
Sources
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