Tinder date rape: Jury told to avoid moralising on 'hook-ups'

The jury in a date rape case have been warned not to judge the two complainants based on their Tinder history. Photo / Michael Cunningham

A judge in a rape trial in which a Dunedin man connected with his alleged victims through a dating app has urged a jury to avoid prejudice.

"In this case you've heard about the Tinder app and that was about people meeting and hooking up, if you like," Judge Michael Crosbie told the Dunedin District Court during his summing up this morning.

"You don't sit here as a court of morals. We're not here to judge the morality of people meeting through Tinder or how they go about drinking and socialising."

Michael John Danyon Fraser, 24, has spent more than five days on trial accused of three counts of rape, one of sexual violation by unlawful sexual connection and two of attempting to do so.

The Crown case is that the two women each went home with the defendant after bumping into him in central Dunedin the early hours of the morning.

The first incident happened on January 21, 2018, the second just five weeks later.

It is alleged Fraser forced himself on the complainants almost as soon as they were inside the room of his Cargill St flat.

Both women told the jury "strikingly similar" accounts of forced sex acts, as well as slapping and choking to which they never consented, the Crown said.

Prosecutor Richard Smith also pointed to the reactions of the complainants in the immediate aftermath as being indicative of being raped.

One was so upset as to be "incoherent", the court heard, and another recorded a tearful Snapchat video to her friends.

The defence, however, said both women had consensual sex with Fraser.

Counsel John Munro said when the first women said she did not like "rough sex", the defendant immediately relented.

The second, the defence said, participated in consensual light slapping and choking.

The alleged attempted sexual violations either never occurred or were mistakes which were laughed off by both parties at the time.

Munro stressed there were no injuries to the women and no realistic explanations as to how they become undressed while they were supposedly resisting Fraser.

Judge Crosbie said the issue of consent was likely to loom large for jurors.

It was defined as: true consent, freely given, by a person able to make a rational decision.

Just because each of the women may have been contemplating sexual activity with Fraser when they agreed to go home with him, this did not mean they automatically consented to the ensuing acts.

"Consent is to be assessed at the time of the sexual activity," Judge Crosbie said.

The Crown, he said, had to prove Fraser either realised the women were not consenting to sex at the time or could not have had a reasonable belief that they were.

The evidence of the defendant's ex-girlfriend was also likely to form a part of the jury's considerations.

In a statement read in court she spoke of how they had experimented with rough sex together.

"I didn't care at all, it wasn't like he was choking me until I was dying. It was just like his hand was there, that was it. Nothing bad," the woman said.

"Michael never slapped me violently or hit me forcefully during our relationship."

Munro said it showed his client was not over-aggressive and had operated within the consented parameters.

Crown prosecutor Richard Smith suggested Fraser was simply out for his own sexual gratification.

"It's not fair that people like you like to be choked but when I do it to someone else it's like I'm raping them or whatever," the defendant messaged his ex-partner.

Judge Crosbie sent the jury out to begin its deliberations.

"Look at the evidence clinically and carefully . . . your task is solemn and exacting," he said.