Man who raped mother loses appeal in the Supreme Court

A man convicted of raping his mother has had his appeal dismissed by judges in the Supreme Court, who ruled that the trial judge’s directions to the jury in the rape trial had broadened the defence available to the accused rapist beyond what the law proscribed.

Delivering the judgment of the seven-judge court, Mr Justice Peter Charleton dismissed the man’s appeal, ruling that no error in favour of the Director of Public Prosecutions could be found.

As a consequence of the erroneous direction, the Supreme Court provided a lengthy judgment concerning the proper explanation to be given by a trial judge to a jury on the mental element in rape.


In the Central Criminal Court on 4th July 2012, C O’R was convicted by a jury of raping his mother and sentenced to 15 years imprisonment. C O’R unsuccessfully appealed his conviction to the Court of Appeal on grounds related to, amongst others, the inadequacy of the judge’s legal direction to the jury on the elements of the crime of rape.

Subsequently, C O’R sought leave to appeal to the Supreme Court under Article 34.5.3º of the Constitution – claiming that “the trial judge had not properly elucidated the mental element of rape in a context where prosecution and defence counsel had taken radically different approaches in explaining this element in their respective closing speeches to the jury”.

Thus, it was asserted, “an unfortunate precedent in the charging of juries on this most grave crime would be left to be repeated, causing inevitable confusion and unsound verdicts”.

In granting leave to appeal, two issues were proposed by the Court:

  1. Does the mental element of rape excuse a situation where on unreasonable and irrational grounds a man genuinely believes that a woman has consented to sexual intercourse, whereas in fact she has not so consented?
  2. Within the definition of rape, is there a requirement in law for a man to ascertain prior to sexual intercourse that the woman is:
    1. Capable of consenting to the sexual intercourse; and
    2. That as a matter of fact she does so consent.
    3. The mental element of the crime of rape

      On the appeal, there was considerable emphasis on what Justice Charleton described as “a divergence of rhetoric… not divergences of law but arguments as to the appropriate approach to the same evidence” and that “the trial judge correctly and firmly distanced himself from both sides when he came to address the jury”.

      According to Justice Charleton “insofar as a misstatement of law might be identified in the judge’s charge… this was White J’s mistaken reference that a belief by the accused that a woman ‘might be consenting’ rendered non-consensual sexual intercourse somehow not a crime”.

      “A woman has a constitutional right to her bodily integrity. As a matter of law, there must be a lack of consent by the woman and for sexual intercourse to nonetheless be excused in those circumstances, the accused must honestly believe that the woman was actually consenting, not merely that she might be”.

      Justice Charleton then set out the elements of the crime of rape, beginning with its origins in the common law and the crime codified in the Criminal Law (Rape) Act 1981 (as amended by the Criminal Law (Rape) (Amendment) Act 1990).

      After a lengthy discussion of the mental element in rape, Justice Charleton stated that it was clear that “if anything, the trial judge inadvertently broadened the defence available to the accused beyond what the law has proscribed”

      Therefore, the trial judge’s mistake was in favour of the accused, no error in favour of the prosecution could be identified; and C O’R’s appeal was dismissed.

      Future directions

      In providing future directions to be given by trial judges, Justice Charleton emphasised that directions “must necessarily depend on the particular elements of the prosecution case and the defence case as these are presented in any given criminal trial” and the “jury should begin by deciding which facts they accept beyond reasonable doubt and which facts they reject”.

      “If sexual intercourse and lack of consent is proven, then the jury should consider the mental element i.e. what was the accused’s state of mind at the time. Inferences can be drawn from the facts which the jury accept as proven in relation to the absence of consent, and in particular the circumstances proven in relation to that issue, but only such inferences as may be found beyond a reasonable doubt”.

      Where the issue is joined between opposing accounts as to what was said by the woman alleging rape and what was done by her and what the accused says in contradiction of that, the direction for a jury is based on The People (DPP) v F (Unreported, 27 May 1993).

      “As to the element that the accused knew that the woman was not consenting… that the accused knew that the woman was not consenting is a fair explanation”.

      “Recklessness means the accused man was aware that there was a risk that the woman was not consenting but nonetheless proceeded. If it is proven that he was aware that there was a real risk that the woman was not consenting but he proceeded to have, or continue, intercourse with her in spite of this, then recklessness is established”.

      “Where the accused claims to have mistakenly believed that a woman was consenting, then the jury should examine all of the facts which may support or which may undermine that claimed belief… As s. 2(2) of the Criminal Law (Rape) Act 1981 states: the presence or absence of reasonable grounds for such a belief is a matter to which the jury is to have regard, in conjunction with any other relevant matters, in considering whether he so believed. That means that where the accused believed genuinely, albeit unreasonably, that the woman was consenting, on this statutory definition he must, even though she did not consent, be acquitted”.

      • by Seosamh Gráinséir for Irish Legal News
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