Emoji ‘implied consent’ in rape case, court told
A defence lawyer has argued an alleged rape victim consented to sex because she used the “face with peeking eye” emoji (🫣) to imply she was open to boundaries being broken.
Liam Herbert, 31, was charged with three counts of rape after allegedly assaulting the woman during their first meetup at her home in Sydney’s south.
He faced a jury trial at Sydney Downing Centre District Court in August presided over by Judge Christopher O’Brien, which resulted in a hung jury. A retrial is scheduled for April.
While the woman consented to some sex acts, she told Herbert in the hours before the meetup she did not consent to others. She also said he ignored her telling him she was in pain and her repeated calls for him to stop.
Defence barrister George Costantine argued Herbert believed he was acting out a previously discussed fantasy of non-consensual sex.
Herbert initially denied a sex act to police, before saying it may have happened “unintentionally”.
The woman spent three days in the witness box, where she was questioned about her fantasies and emoji meanings and accused of fabricating the assault to re-establish contact with her ex-boyfriend.
Herbert and the woman met on a sex-positive dating app in late 2024. The woman said she had never tried a fantasy of consensual non-consent (CNC), a sexual scenario where partners agree ahead of time to act out a scenario where one person pretends not to want sex.
The woman told the court she understood it to be an experience in which both parties establish safe words and boundaries. However, she said the pair never discussed details because she understood they would not be engaging in CNC.
In the days before meeting up, the pair engaged in a dominant and submissive dynamic in messages, with Herbert texting her about CNC, to which she responded positively, but testified it was just a “conversation”.
‘My understanding was that we weren’t going to enact any fantasies, but he would come over for sex.’
The complainant
“My understanding was that we weren’t going to enact any fantasies, but he would come over for sex,” she said.
The prosecution argued using general fantasy discussions as consent was “designed to mislead and get concessions”, calling the defence questioning “unfair”.
In the hours before their meetup, Herbert asked about sex toys. She consented to use one, but said, “I don’t want anything [else in],” later sending the peeking emoji.
Costantine asked: “[Are] you simply saying in that emoji, ‘Well, let’s see what happens’ … to leave the opening of the possibility of [the sex act] … so you could continue on the [CNC] fantasy?”
The woman replied “no” to all questions.
The woman buzzed Herbert into her apartment block and left the door unlocked. Costantine questioned whether leaving the door unlocked was part of her “rape fantasy”, though she testified it was always left unlocked.
Herbert arrived, and the pair had sex, which became painful. The woman said she told him to stop multiple times, the court heard, but he continued. She later texted him that she had “screamed” at him to stop.
They then moved to the bedroom for consensual sex.
“I was hoping that [with] the change of atmosphere – it would become normal sex,” she said.
The sex allegedly turned forceful as Herbert wrapped his leg around her neck. He then removed the sex toy, and raped her as she told him to stop and tried to push him off, the court heard.
After he left, the woman discovered she was bleeding, cried and messaged friends, who met her at hospital, where she reported the assault to police. A forensic kit revealed lacerations.
During a police-monitored phone call between the pair, Herbert admitted to the sex acts.
In a police interview, however, Herbert agreed she had set a boundary regarding the sex toy and sex act, and denied the sex act.
In a second interview after being shown the forensic evidence, Herbert said the sex act could have happened “unintentionally”.
The woman told the court she feared she wouldn’t be believed because it started off consensually.
Speaking with the Herald, the woman said the judicial process felt burdensome and unfair.
“It was a lot of work just to hopefully be believed.”
She added that the defence lawyer’s line of questioning was “downright offensive” and wants people to understand that consent can be withdrawn at any time.
“It doesn’t give anyone the right to continue just because it started off consensually.”
Support is available from the National Sexual Assault, Domestic Family Violence Counselling Service at 1800RESPECT (1800 737 732) or the Men’s Referral Service on 1300 766 491.
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