An ex-soldier, whose lawyers contended that indecent proposals or behaviour did not constitute a sexual assault, has had an appeal against his court martial dismissed by the Court of Appeal.
The 42-year-old, who cannot be identified to protect the victim’s identity, had denied a charge of sexual assault and four charges of conduct contrary to good order and discipline at Aiken Barracks, Dundalk, Co Louth, on October 30, 2013.
He was convicted by a board of Defence Force members and the penalties imposed by Military Judge Colonel Michael Campion ranged from fines to detention and discharge.
Opening an appeal against his court martial last month, his counsel, Roderick O’Hanlon, contended that indecent proposals or indecent behaviour does not constitute a sexual assault.
Dismissing his appeal yesterday, Mr Justice Alan Mahon said the complainant had enquired as to whether a sauna in the gym was working on the day in question.
She was told it was and the man suggested to her that he would meet her in the sauna later. She indicated that she was not agreeable to this suggestion.
Later, as she walked toward the female changing area, the man shouted to her that he would follow her in. She indicated that this was not acceptable to her.
The man then entered the female changing area, undressed, took a quick shower and wearing a towel entered the sauna. She asked him to leave, he did not do so and she ultimately left.
She said she felt uncomfortable and advised him not to emerge from the sauna until she dressed herself. She then went into the female shower cubicle.
Moments later the man came into the shower cubicle having removed his towel beforehand. There was a momentary contact because of their proximity in the shower.
She said she felt faint when the man entered the shower cubicle, completely violated, and was angry, felt sick and uncomfortable.
Mr Justice Mahon said an assault in common law does not require force. Citing academic study, he said assault in common law does not involve the direct application of force but could be constituted by movement or gesture.
Mr Justice Mahon said the court was satisfied that the military judge was correct in refusing to direct an acquittal and the board were properly charged in relation to the matter.
The former soldier is due to appeal the severity of his sentence. He was remanded on continuing bail until the conclusion of his sentence hearing.
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