
Footballer rape claim woman 'drunk but capable of consent'
David Goodwillie's solicitor tells court lack of memory does not equate to lack of consent.
A woman who is suing two footballers for rape damages was drunk but capable of consenting to sex, a court has heard.
Former Scotland international David Goodwillie's solicitor told a judge it was entirely possible to have intercourse while under the influence of alcohol but have no memory of it afterwards.
Laura Thomson said research showed people could drive, have sex, get into fights, commit vandalism and spend money of which they had no memory during alcohol-induced blackouts.
She argued lack of memory did not equate to a lack of consent to what took place.
Ms Thomson, junior counsel for Goodwillie, said the evidence in the damages action showed the woman was not unconscious due to her levels of alcohol but she was drunk.
The solicitor said when Goodwillie was in the woman's company she was drinking and intoxicated, while he was also drinking.
She told the Court of Session in Edinburgh both were capable of walking, conversing and using their mobile phones.
Ms Thomson said in the last sighting of the woman on CCTV footage she was walking without difficulty.
She pointed out that when the woman dropped items in the foyer of a nightclub she had no difficulty picking them up.
Ms Thomson submitted that at no point in the film was she seen to stumble, stagger or fall.
She also pointed to the evidence of an upstairs neighbour at the flat where the rape is alleged to have occurred who had heard male and female voices and said the woman sounded alert.
The 30-year-old is suing former Scotland striker Goodwillie, 27, and his then-Dundee United teammate David Robertson, 30, after raising a £500,000 claim.
She alleges they raped her at a flat in Armadale, in West Lothian, in the early hours of January 2 in 2011.
In the action, the woman maintains she has no recollection of what happened after being in the Glenmavis Tavern in nearby Bathgate earlier in the evening of January 1 until she awoke in the flat about 9.30am the next day alone, naked and in pain.
Neither man was prosecuted over the incident and both deny the allegation, claiming sex was consensual.
Ms Thomson said: "[Goodwillie's] position is that his belief was reasonable and honest."
Roddy McIlvride QC, counsel for Robertson, said the court should find that on the evidence the woman was drunk on leaving Chalmers nightclub in Bathgate but not severely intoxicated.
Mr McIlvride said there was evidence of a clear attraction between the woman and Robertson which developed during the course of the evening.
Robertson and Goodwillie had been out drinking in Bathgate, as had the woman, on the evening of January 1 before going onto the club.
He said: "There are indications that the pursuer was acting out of character that evening and I say she acted out of character all evening."
Mr McIlvride said skilled evidence from expert witnesses in the case did not support a finding on the balance of probabilities that the woman was unable to consent.
Both solicitors asked the judge, Lord Armstrong, to absolve the players in the action.
The judge reserved his decision and will give a ruling at a later date.