Child rape accused cleared as alleged victim had touched him on invitation, appeal told
The State has appealed the acquittal of the 34-year-old man, who was found not guilty of the rape and sexual assault of the young girl after the trial judge referenced UK case law in sexual assault cases. File picture
A jury was directed to find a man accused of the rape and abuse of a young girl when he was a teenager not guilty on the basis that there could be no assault as she had touched him on his invitation, the State has told the Court of Appeal.
The State has appealed the acquittal of the 34-year-old man, who was found not guilty of the rape and sexual assault of the young girl after the trial judge referenced UK case law in sexual assault cases.
The man, who cannot be named due to legal reasons, was charged with one count of rape and two counts of sexual assault. The charges include an allegation that between January 1, 2005, and September 30, 2005, at a location in Dublin, he sexually assaulted a girl by putting his penis in her mouth. She was aged between six and seven at the time and he was aged 16.
He pleaded not guilty and stood trial before Mr Justice David Keane at the Central Criminal Court on June 30, 2022.
At the Court of Appeal on Thursday, counsel for the State John Fitzgerald SC said that Mr Justice Keane had directed the jury to find the respondent not guilty. He said Mr Justice Keane had made references to UK case law that determined in cases where an invitation was made to someone to touch an accused person and they did, then the inviter cannot be convicted of assault.
The references made were to the case of Fairclough v Whipp, in which a man told a nine-year-old girl to touch his exposed penis and she did, and DPP v Rogers, in which a man got his 11-year-old daughter to masturbate him.
Mr Fitzgerald defined sexual assault as unwanted touching, including touching the mouth of another with the penis.
He referred to the statement by the alleged injured party that the respondent “kind of just stopped” during the alleged assault. He said that this demonstrated there had been agency in this case by the respondent.
Counsel said it was offensive to suggest that there had been no assault just because there had been no movement by the respondent. Mr Fitzgerald said that the case of Fairclough v Whipp was an example of “zombie law,” something that had remained stubbornly as a law and had never been overruled.
Ms Justice Isobel Kennedy noted there were three counts on the original indictment dealing with allegations by the complainant that included being asked to touch the man’s penis. There were allegations about the removal of clothing, and it was also alleged that the respondent had inserted his fingers into her vagina and there had also been oral intercourse.
Mr Justice John Edwards said if the complainant had been invited to touch his penis and she put her hand on it, nothing active was required on the part of the perpetrator.
“But an oral sexual act is a penetrative act, not merely passive. She had to accept his penis into her mouth, so there was a coming together in which he participated,” said Mr Justice Edwards.
“The act of the penis entering her mouth was an assault, but Mr Justice Keane did not agree and matters ended there,” said Mr Fitzgerald.
Counsel for the respondent, Fiona Murphy SC, said there had been “a hole in the case” as there was no evidence of any force being used. “Force is an ingredient of the offence of assault,” she said.
Mr Justice Edwards said that assault may be unintentional touching with no mention of force, and Ms Justice Kennedy said assault is an unwelcome touching. “That would be fine if the touching is by the accused person. The touching in this case was done by the invitee,” said Ms Murphy.
Regarding the reference to the respondent stopping during the alleged assault, Ms Murphy said there was “an evidential hole in the case”.
“He stopped the contact initiated by her,” she said. “The complainant said there was no ejaculation. The contact stopped, the contact that she initiated at his invitation.” Mr Justice Edwards said there were an awful lot of weighty issues to consider and ruled that the court would reserve judgment in the matter.
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