Man jailed for raping woman without a condom loses appeal against conviction

A 32-year-old man jailed for raping a woman without a condom, who he had been briefly dating, has lost an appeal against his conviction.

The Meath man, who cannot be identified to protect the victim’s identity, was convicted of a single count of raping the woman at her apartment in Dublin on November 23, 2014. He had denied the charge.

The Central Criminal Court heard that the pair had met two weeks earlier and began dating. On the night in question, they were in the midst of becoming intimate when the woman told him she wasn’t willing to have sex without a condom.

He made several attempts to have sex with her without a condom but was “rebuffed by her in clear terms”. He ultimately penetrated her but stopped after she told him he was raping her.

Sentencing the man to five years imprisonment with the final 18 months suspended, Mr Justice Paul Butler said he had been thinking about the case since it began and it had troubled him deeply.

He said that in his 18 years of dealing with rape cases, it fell into one of the lowest category he had come across, though that was not to denigrate the offence. He said there had been some consensual sexual activity between the parties and the only clear rule was that there be no unprotected sex. This was ignored on this one occasion, which amounted to rape.

He said the man had no previous convictions and had “led a blameless life before this incident”.

In her victim impact statement, the woman said the rape had “destroyed her spirit” and described sleeping with a knife under her pillow for a time afterwards. She said the rape had “effected every branch of my life in a profound way”.

The man lost an appeal against his conviction today on grounds that the jury ought to have been discharged when the complainant repeatedly referred to matters she wasn’t permitted to talk about.

His lawyers submitted that the complainant gave the jury the impression that evidence was being withheld from them. They claimed her answers were “calculated to draw attention to evidence which the witness knew had been ruled inadmissible”.

In answer to a question from defence lawyers, in the presence of the jury, she referred to being “cut off earlier as not relevant when the jury had to leave”.

A short time later she said: “again, conversation that we weren’t allowed speak about would explain why I said that”.

Dismissing the man’s appeal, Ms Justice Isobel Kennedy said it was clear the complainant was a careful and direct witness.

She said the court rejected the contention that her replies to questions, asked on behalf of the defence, gave rise to an impression in the presence of the jury that information and conversations were being withheld from them.

She said the impugned comments came about as a direct result of cross examination by the man’s senior counsel, Barry White SC, and the court could see no prejudice arising from answers given in such a careful fashion.

In relation to the trial judge’s warning to the jury about convicting in the absence of corroborative evidence, Ms Justice Kennedy said the trial judge gave the jury a clear explanation of the concept of corroboration and informed them on three occasions that there was no corroboration of the complainant’s testimony.

The trial judge had advised the jury that this was “not uncommon” in cases of this nature and they should be particularly careful if they choose to convict, as miscarriages of justice do occur.

If there had been any concerns on the part of those present, Ms Justice Kennedy said it was logical to conclude those concerns would have been raised with the trial judge at the time, and that did not happen.

The man had a new team of lawyers for his appeal. Ms Justice Kennedy, who sat with President of the Court of Appeal Mr Justice George Birmingham and Mr Justice Patrick McCarthy, dismissed the appeal.

The trial heard that the woman met the accused at a pub were in regular phone and text contact. The woman made it clear that sex without a condom was not something she was interested in.

On the night of the incident, the pair were kissing in bed and the woman told the accused that if he wanted to have sex there was a shop nearby where he could get condoms. The man said he didn't want to and appeared to understand her position.

Later they were kissing again and he penetrated her. She told him he was raping her and he stopped. The woman contacted a friend after he left her apartment and she was examined in a sexual assault treatment unit.