Louth rape accused acquitted after trial which made legal history

A Louth man has been acquitted by direction of the judge of orally raping a mentally handicapped woman following a Central Criminal Court trial that made legal history.

For the first time in an Irish court a pre-recorded DVD of a garda interview with a vulnerable complainant was played to a jury in place of evidence from the witness box or via video link.

Mr Justice Barry White deemed the DVD admissible under section 16 of the Criminal Evidence Act 1992 following an application by prosecution counsel, Ms Caroline Biggs SC and Mr Stephen McCann BL, at the outset of the trial.

However the legislation required that the complainant be available for cross examination but this was not required by defence counsel, Mr Brendan Grehan SC (with Mr Kieran Kelly BL).

The case also highlighted a gap or “lacuna” in Irish laws protecting mentally handicapped people.

The 61-year-old man had pleaded not guilty to sexually assaulting the woman on December 11, 2008.

The prosecution case alleged that the man had asked the young woman, who has a mental age of between eight and nine, to follow him outside and then repeatedly asked her to perform a sex act.

The now 23-year-old woman told gardaí, during an interview viewed by the jury, that she had been “forced” to perform the act and she kept saying “no” when the man said “go on.” When asked if he said anything else to her she said he had not.

The accused man denied the allegations when arrested and questioned by gardaí following a complaint from the woman’s family.

Mr Justice White told the jury that he “utterly abhors” the thought of an allegation of someone taking advantage of a person with a mental impairment but said “justice must be administered in a cold, dispassionate and analytic way.”

He told the jury that the accused had been charged under section 4 of the Criminal Law (Rape) (Amendment) Act 1990 which does not have regard to any mental impairment a complainant may have.

He said there was legislation in place which makes certain sexual activity with a mentally impaired person illegal but it does not provide an offence for the alleged circumstances of this case.

This legislation, The Criminal Law (Sexual Offences) Act 1993 (Section 5), provides only for offences in which a person “has or attempts to have sexual intercourse” or “commits or attempts to commit an act of buggery” with a “mentally impaired person.”

He told the jury that in the United Kingdom, The Sexual Offences Act 2003 specifically provides for an offence in exactly the alleged circumstances of this case.

“It seems to me that the Oireachtas when they introduced the 1993 act did not fully appreciate the range of offences needed to give protection to the vulnerable,” said Mr Justice White.

He told the jury the judiciary could not fill in “a lacuna in the law.”

Mr Justice White said that, having regard to case law, he had to come to the conclusion that there had not been an assault involving a person being actually forced to do something or threatened so that they feel they must submit.

He told the jurors they had heard the complainant use the word “forced” in her evidence on the DVD but she had not expanded upon that and there was no suggestion of threat or menace.

He said he could not let the case go to the jury and must apply the law and it “was with great reluctance” that he was asking them to return a verdict of not guilty.

He thanked the five men and seven women for their time and attention to the case and exempted them from further service for five years.