Army captain's sex assault was an 'aberration' in otherwise 'glittering career', lawyers argue
The Defence Forces military camp on the Curragh in Co Kildare. File Picture
A former army captain's sexual assault on a female soldier was an “aberration” in an otherwise “glittering career” and his dismissal from the defence forces was a “disproportionate” punishment, his lawyers have told the Court of Appeal.
However, Counsel for the Director of Military Prosecutions submitted that Ross O’Shea invoked his rank during the assault, leaving the victim feeling she could not defend herself due to her training and the “innate deference” officers have for their superiors.
O’Shea was found guilty by a General Court Martial in October 2022 of sexually assaulting a female non-commissioned officer (NCO) following a social function at a barracks in Leinster on June 25, 2020. He was tried in September 2022 before Military Judge Colonel Michael Campion and a court martial board.
The former army captain was convicted on October 14, 2022 of sexually assaulting the woman by moving his open palms up and down her back saying “come on, come on” or words to that effect at the officer’s mess.
He was also found guilty of one charge of assault against the same officer contrary to Section 2 of the Non-Fatal Offences Against the Person Act 1997 by moving towards her in a manner that caused her to apprehend an assault.
His dismissal was ordered as part of the sentence imposed on these two charges.
A custodial sentence of six months detention in the Curragh Camp was also imposed but this was suspended for a period of one year.
O’Shea’s appeal against his conviction was dismissed by the three-judge Court of Appeal last October.
The offences occurred when the former army captain attended a barbecue hosted by the Covid Joint Task Force during a lockdown period in the pandemic.
O’Shea had been brought to the officer’s mess by two female NCOs after he had been found asleep and in a state of inebriation sitting in a chair outside a gymnasium where the barbeque had earlier been held.
Launching an appeal against the severity of his sentence at the Court of Appeal on Friday, James Dwyer, defending, argued that the sentence imposed by the Military Judge represented an error in principle.
He said there were a number of mitigating factors in the case, including the fact that the offences were “brief in duration” and did not involve penetration or touching beneath clothes. There was no grooming, violence, or premeditation, counsel said, and the offences were not committed in a bedroom in the absence of other witnesses.
Mr Dwyer said O’Shea is a family man with no previous convictions and the offences were committed as an aberration in an otherwise “glittering career” spanning 17 years.
O’Shea had co-operated with the investigation and expressed remorse, he added.
He said that while the disparity in rank between the army captain and the injured party was an aggravating factor, it was insufficient to warrant it being characterised as a “serious sexual assault”.
Counsel argued the dismissal was “disproportionate” and said other orders, such a reduction in rank, would have met the objective of deterrence.
Mr Dwyer said there appears to be no Irish authorities on the criteria to be applied for dismissal.
He highlighted a number of comparator UK cases where members of the defence forces were dismissed but the decisions were subsequently set aside and replaced with a reduction in rank. He said one of these cases involved a sergeant pushing a civilian barmaid up against a wall and touching her breasts while in another the appellant had banged on a cubicle in a lady’s lavatory and exposed his penis when the woman came out.
Remy Farrell, for the Director of Military Prosecutions, said the core issue before the military judge was the disparity in rank between O’Shea and the female officer.
He said the difference between offences committed in a civilian context and those committed in a military one were highlighted by the trial judge.
He said a “remarkable and striking feature” of this offence was the reaction of the injured party when, in the middle of a sexual assault, she thought she could not “lift a finger to defend herself”. He said this was as a result of her military training and the “innate deference” that officers have for their superiors.
Mr Farrell said the female officer felt she could not touch the army captain or she herself might be disciplined.
He said the complainant sought help from other officers present but the appellant told them to “fuck off” and that was “essentially what they did”.
“He invokes his rank,” said counsel. “This is an officer who is taking deliberate and conscious advantage of his rank — not only to do this but to dissuade other’s from taking action against it.”
He submitted that this, along with other aggravating factors, including the fact that O’Shea was in uniform and in barracks, his position of responsibility and breach of trust and the aggression, persistence and application of force, were taken into consideration by the trial judge.
Mr Farrell said deterrence was also an “absolutely critical feature” of the case.
He submitted the appellant had failed to identify any error in principle in this case and the sentence imposed was, if anything, “on the lower end”.
Mr Justice John Edwards said the court would reserve judgement in the matter.
O’Shea had been charged and tried before the court martial with a total of 18 offences.
He pleaded guilty to five charges, including charges of conduct contrary to good order and two charges of assault against the two female NCO officers contrary to Section 2 of the Non-Fatal Offences Against the Person Act 1997.
He was convicted of two other charges and acquitted of a further seven charges while four more were withdrawn during the trial.
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