Thursday 18 January 2018

Man who raped mother on Mother's Day tells Supreme Court he 'genuinely believed victim consented to sex'

Supreme Court dismisses appeal and clarifies meaning of consent in rape cases

The Four Courts, Dublin
The Four Courts, Dublin

Tim Healy

THE Supreme Court has dismissed a man's appeal against his conviction for raping his mother on Mother's Day.

A seven-judge court had agreed to hear an appeal focusing on the "mental element" of rape and on consent issues.

Its judgment provides guidance for judges in explaining to juries the law on rape, including in relation to defences based on a mistaken belief there was consent to sex.

The man had claimed he genuinely believed his mother, aged in her sixties and with mobility problems, consented to sex.  She was adamant she had not.

He was convicted by a jury in 2012 and jailed for twelve and a half years.

The rape happened in 2008 after he called to her home where she was in bed having been out earlier with relatives for a Mother's Day meal.

She got up, both consumed some "strong drink", and started dancing. She said it was ballroom dancing, he said it was "erotic" dancing.

She was also on some medication and told the jury she ended up on the floor with her son on top of her having sex with her.

She said that was not consensual and had repeatedly told him to leave her alone. He maintained it was consensual.

Giving the Supreme Court judgment, Mr Justice Peter Charleton said the crime of rape is "a terrible violation of a woman's physical and mental integrity".

Insofar as the trial judge in this case had mis-stated the law in his charge to the jury, that mis-statement was in favour of the defence, he said.

The trial judge mis-stated the law by a mistaken reference that a belief by the accused that a woman "might be consenting"  rendered non-consensual sex somehow not a crime, he said.

A woman "has a constitutional right to her bodily integrity".

As a matter of law, there must be a lack of consent by a woman and sexual intercourse in such circumstances can only be excused if an accused honestly believed the woman was actually consenting, "not merely that she might be".

A proper consideration of the mental element in rape demonstrated the trial judge mistakenly stated the defence case in terms of law too widely but in favour of the accused, he said.

No error against the accused had been identified and his appeal would be dismissed.

Earlier, the judge said the model chosen in the Criminal Law (Rape) Act 1981 - which relates only to rape by a man of a woman - adopted not what a "reasonable man" believed concerning whether there was consent, but rather what an individual accused actually believed.

Following a detailed analysis of the mental element of rape, he said the trial judge in this case had inadvertently broadened the defence available to the accused man beyond what the law prescribed.

That was a mistake in favour of the man and no error in favour of the prosecution had been identified.

Addressing future directions in rape case, he said those must necessarily depend on the particular elements of the prosecution and defence cases as presented in the trial.

Trial judges need to also state no jury is "under any obligation to believe an obviously false story" and is entitled to accept or reject prosecution or defence evidence, he said.

Where defences of mistaken belief in consent are advanced, every jury is entrusted to judge what the accused claims to be a mistaken belief against the view of what an ordinary or reasonable man would have realised in the circumstances.

This defence requires "genuine belief", he stressed.

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