A Laois man who was jailed for beating and raping his wife, has moved to appeal his conviction which centred on the question of consent.
The 46-year-old man, who cannot be named to protect the victim's identity, had pleaded not guilty to raping the woman on January 8, 2015 but admitted assaulting her by punching her in the face on the same occasion.
He was unanimously found guilty of rape by a Central Criminal Court jury and sentenced to seven years imprisonment with the final two suspended by Mr Justice Paul Butler on December 20, 2016. The man's conviction for marital rape was the fourth recorded in the State since it was criminalised in 1990.
The prosecution’s case that the woman was afraid for her life and she felt “sex was the only way out”. The Court of Appeal heard on Monday that it was a nuanced case and that the couple had both been members of different “cults” in the past.
The man moved to appeal his conviction on grounds that the trial judge erred in directing the jury on the concept of recklessness having regard to the particular facts of the case, erred in misdirecting the jury on the issue of resistance (section 9 of the Criminal Law (Rape) (Amendment) Act 1990) and in doing so, undermined the defence's case. Finally, it was submitted that the trial judge erred in failing to withdraw the case from the jury.
His barrister, Caroline Biggs SC, said the couple had been married for 21 years. There had been an "awful assault" and an “awful use of language” immediately prior to the incident. The man had told her he would rape her and that it would be enjoyable.
Ms Biggs said there had been a "break" between the assault and the penetrative act. Things changed over the course of a number of minutes.
The woman realised her husband could not "sustain an erection". She believed he was delusional and that "God had saved her". She told him she loved him. She rubbed his back and what happened after that, she described, in her own words, as sex.
In evidence, she said she was afraid because she thought her face was badly hurt from the assault. When asked whether fear was in her mind at the time of penetration, she said “no. At that moment, it (fear) wasn't at the forefront of my mind”.
Notwithstanding his use of the words that he would rape her, Ms Biggs said he couldn't follow through with that or have the required intent because he couldn't sustain en erection.
What was in her mind, and his mind, at the time of penetration, was the issue.
Ms Biggs said that a the time of the penetrative act, the woman was voluntarily consenting.
Under cross examination, and in her own words, she agreed that she was responding positively to sexual acts, like she would normally.
Ms Biggs said the trial judge gave an incorrect direction to the jury on the issue of recklessness.
All the defence asked the judge to say was that in order to be reckless, the accused must have consciously averted or thought about the risk that she was not consenting - “that he thought about it,” Ms Biggs said.
She said the trial judge's use of the word careless in his directions on this issue, lowered the threshhold envisaged by the Supreme Court.
Counsel for the Director of Public Prosecutions, Pauline Walley SC, said it was a nuanced and complex case.
She said the woman was a “traditional, God fearing lady” who “believed absolutely” that when she got into the witness box, she had to tell the truth.
Ms Walley said the woman participated in the sexual act “because it was her way of surviving”.
She said a woman can feel she is coerced into having sex with her husband because she's been beaten and terrified.
She said the man had told his wife that he was going to rape her. That wasn't recklessness, Ms Walley said, but a declaration of intent.
Ms Walley said the issue at trial was consent and the idea that the man might have been mistaken or reckless did not arise.
“At the end of the day, the jury believed her,” Ms Walley said.
Mr Justice George Birmingham, who sat with Mr Justice Alan Mahon and Mr Justice John Edwards, said the court would reserve judgment.