In a retrial scheduled for April at Sydney Downing Centre District Court, Liam Herbert, 31, faces charges of three counts of rape after an alleged assault during his first meet-up with a woman in Sydney’s south. His defense lawyer argued that the use of the “face with peeking eye” emoji implied consent to non-consensual sex as part of their pre-discussed sexual fantasy. The prosecution contends that such general discussions about fantasies cannot be construed as actual consent and challenges the relevance of the emoji exchange, highlighting the alleged victim’s explicit refusals during the encounter.
Written locally by qwen2.5:14b on 2026-10-11,
using this article's own text rather than the other coverage of the
same event (that is the story summary below).
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.
asserted
boundaries → argue → emoji
Liam Herbert, 31, was charged with three counts of rape after allegedly assaulting the woman during their first meet-up at her home in Sydney’s south.
uncertain
Herbert → charge → 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.
asserted
which → face → jury
A retrial is scheduled for April.
asserted
retrial → schedule → April
While the woman consented to some sex acts, she told Herbert in the hours before the meet-up she did not consent to others.
asserted
she → consent → others
She also said he ignored her telling him she was in pain and her repeated calls for him to stop.
asserted
him → say → pain
Defence barrister George Costantine argued Herbert believed he was acting out a previously discussed fantasy of non-consensual sex.
asserted
he → argue → sex
Herbert initially denied a sex act to police before saying it may have happened “unintentionally”.
uncertain
it → deny → police
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.
asserted
she → spend → boyfriend
Herbert and the woman met on a sex-positive dating app in late 2024.
asserted
Herbert → meet → 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.
asserted
person → say → sex
The woman told the court she understood it to be an experience in which both parties establish safe words and boundaries.
asserted
parties → tell → words
However, she said the pair never discussed details because she understood they would not be engaging in CNC.
asserted
they → say → 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”.
asserted
it → meet → which
They then moved to the bedroom for consensual sex.
asserted
They → move → sex
“My understanding was that we weren’t going to enact any fantasies, but he would come over for sex,” she said.
asserted
she → go → sex
The prosecution argued using general fantasy discussions as consent was “designed to mislead and get concessions”, calling the defence questioning “unfair”.
asserted
using → argue → defence
In the hours before their meet-up, Herbert asked about sex toys.
asserted
Herbert → ask → toys
She consented to use one, but said, “I don’t want anything [else in],”
asserted
I → consent → anything
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?”
uncertain
you → ask → fantasy
The woman replied “no” to all questions.
asserted
woman → reply → questions
The woman buzzed Herbert into her apartment block and left the door unlocked.
asserted
woman → buzz → door
Costantine questioned whether leaving the door unlocked was part of her “rape fantasy”, though she testified it was always left unlocked.
asserted
it → question → fantasy
Herbert arrived, and the pair had sex, which became painful.
asserted
which → arrive → sex
The woman said she told him to stop multiple times, the court heard, but he continued.
asserted
he → say → him
She later texted him that she had “screamed” at him to stop.
asserted
she → texte → him
They then moved to the bedroom for consensual sex.
asserted
They → move → sex
“I was hoping that [with] the change of atmosphere – it would become normal sex,” she said.
asserted
she → hop → atmosphere
The sex allegedly turned forceful as Herbert wrapped his leg around her neck.
uncertain
Herbert → turn → 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.
asserted
court → remove → him
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.
asserted
she → leave → police
A forensic kit revealed lacerations.
asserted
kit → reveal → lacerations
During a police-monitored phone call between the pair, Herbert admitted to the sex acts.
asserted
Herbert → monitor → 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.
asserted
she → agree → act
In a second interview after being shown the forensic evidence, Herbert said the sex act could have happened “unintentionally”.
uncertain
act → show → evidence
The woman told the court she feared she wouldn’t be believed because it started consensually.
asserted
it → tell → court
Speaking with the Herald, the woman said the judicial process felt burdensome and unfair.
asserted
process → speak → Herald
“It was a lot of work just to hopefully be believed.”
asserted
It → believe → work
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.”
asserted
it → add → right
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