Man (46) fails in appeal against conviction for marital rape

A Co Laois man jailed for beating and raping his wife has lost an appeal against his conviction which centred on the question of consent.

The 46-year-old, who cannot be named to protect the victim’s identity, pleaded not guilty to raping the woman but admitted assaulting her by punching her in the face on the same occasion, January 8th, 2015.

He was found guilty of rape by a Central Criminal Court jury and sentenced to seven years imprisonment with the final two years suspended by Mr Justice Paul Butler on December 20th, 2016.

His conviction for marital rape was the fourth recorded in the State since it was criminalised in 1990.

The Court of Appeal heard the couple had backgrounds in different Christian fundamentalist communities or sects.

Mr Justice George Birmingham said the couple married in 1994, had children. They experienced difficulties in their marriage for some time and attended marriage counselling.

The woman saw her husband as “controlling”. She was restricted from driving the family car because the husband felt her driving “did not achieve optimum fuel consumption”.

Crying softly

The court heard that at about 9.30pm on the date in question, the man went to bed while the woman saying up until around 11pm. She undressed and got into bed beside him and thought her husband was asleep, but then realised he was crying softly.

She curled up against him and the next thing she remembers is her husband on top of her, punching her in the face and chest. She screamed “help me, God”, to which her husband replied “no God is going to help you”.

The woman said that at one stage the man said to her “now I’m going to rape you and I’m going to enjoy it” but then a “funny thing happened”.

She said her husband had not penetrated her but appeared to think he had. She recalled “sort of laughing” to herself because she felt “God had deluded his mind into thinking” he was doing something he was not.

“I just thought he looked really sad. I said he’s completely lost his mind, he’s completely delusional and I actually felt sad for him. So then I started to tell him that I loved him, that I didn’t mean to hurt him and that I was sorry for hurting him and I rubbed him on the back and I calmed him down and we had sex basically, I wasn’t physically forced to have sex with him.”

Pauline Walley SC, prosecuting, 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.

‘Way of surviving’

Ms Walley said the woman participated in the sexual act “because it was her way of surviving” and that a woman can feel coerced into having sex with her husband because she has been beaten and terrified.

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, and 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.

Caroline Biggs SC, for the man, said there had been a “break” between the assault and the penetrative act. What was in her mind, and his mind, at the time of penetration, was the issue, counsel said.

Notwithstanding his use of the words that he would rape her, Ms Biggs said he could not follow through with that or have the required intent because he could not sustain an erection.

Ms Biggs said the the woman realised her husband could not “sustain an erection”, and that, at the time of the penetrative act, she was voluntarily consenting. She said the woman accepted that fear was not at the forefront of her mind at the time of penetration.

Mr Justice Birmingham, who sat with Mr Justice Alan Mahon and Mr Justice John Edwards, said it was undoubtedly the case that the complainant said a number of things in evidence which were "very welcome indeed from the defence perspective".

However, the fact that defence counsel got answers to questions she was hoping for, did not determine an application to direct the man’s acquittal.

A further ground of appeal on the trial judge’s charge to the jury on the issue of recklessness was also dismissed.

“As unusual as the case was in some respects, we have little doubt but that the jury must have been fully aware of what the issues in the case were and the jury was in a position to resolve those issues,” the judge said.