Prosecution failed to prove woman did not consent, say lawyers for rape accused

Accused have pleaded not guilty to two counts of rape

Prosecution failed to prove woman did not consent, say lawyers for rape accused

Central Criminal Court

Lawyers for two men accused of raping a student who was allegedly too drunk to consent have told a jury that the prosecution have failed to prove that the woman did not consent.

The complainant was a student at a college in Co Donegal in February 2015 when she says the two defendants raped her after a night of drinking.

The two men, aged 29 and 33 are both non-nationals living in Donegal and have pleaded not guilty to two counts of rape of the woman in a town in the county in February 2015. The complainant is now aged in her 20s.

The woman has told the trial at the Central Criminal Court that she was too drunk to consent to sex and that the two accused raped her when she and her female friend went back to their flat after a night out drinking.

Lawyers for each accused submitted to the jury today, Monday, that the prosecution must prove beyond a reasonable doubt that penetrative sex took place between the woman and their respective clients. They said the prosecution must then also prove that the woman did not consent to this.

Finally, counsel said, the prosecution must prove beyond reasonable doubt their client knew she did not consent or was reckless as to whether or not she did consent. Lawyers submitted to the jurors they could have reasonable doubts about any of these elements.

Colman Fitzgerald SC, defending the older accused, told the jury that it was possible for someone to be drunk and consent to sex or to do things you would not normally do.

“Acting foolishly, acting out of character, doing things you later regret, none of them tell you whether or not there is consent,” he said. He said it is a question of whether there was a level of intoxication to the extent that the capacity for consent was gone.

He said that the testimony of the complainant was confused. 

She says there was a pause or else a swap and she was again penetrated and she seemed more certain that it was penis because it felt large.

“On that evidence you could not properly convict both these men of rape,” he said.

He said that gardaí should have done more to see if his client required an interpreter before interviewing him. He said he was being asked about complex issues like consent, and asked if the word “consensual” is a word that would be understood readily by somebody who doesn't speak English.

He said the consequences of failing to inquire into his English understanding, is that it was only at the end of the interview that it occurs to investigators that he might be that he mightn't understand what rape is.

He told jurors to consider this when they decide what weight or reliability to attach to the man's statements in interview. This man told gardaí he had vaginal sexual intercourse with the complainant but it was consensual and that she wasn't drunk at the time.

The jury has heard the younger man told gardaí that he was kissing and touching the complainant's friend but she did not want to have full intercourse and he was “cool with this”. He denied swapping over to the complainant after his friend had finished sexual activity with her.

He told gardaí no sexual activity took place between him and the complainant. Tests showed his semen was found on the complainant's underwear and inside a condom and her DNA was found on the outside of the condom.

Barry White SC, defending, said that the DNA traces could have come from cross-contamination from digital penetration, which is not rape.

He said that if the jury found his client had lied about sexual activity they should bear in mind that people lie for a myriad of reasons. He said one of these might be shame or embarrassment as his client is a married man with children.

He told the jury that there is no evidence from the first person who met the girls the next morning, their flatmate, that they are still drunk or partially drunk. He noted the only person to say they appeared drunk was the college nurse, who told the court it was her view “as a mother, not a nurse”.

“If somebody is perfectly sober the following morning, is it likely they were so blind drunk the night before that they didn’t know what they were doing,” he said.

He said if someone had drank some vodka, three Jolly Rancher shots, four vodka and Red Bull drinks and another drink, would they be able to list the drinks the next day.

He said the video showing the complainant on the bathroom floor shows her having “the presence of mind” to pull her skirt down “to cover her dignity” when it comes up to show her bottom.

“Is that the action of somebody blind drunk out of it. I would suggest not,” he said.

Mr Justice Alex Owens told the jury of seven men and four women that he will continue his charge tomorrow, Tuesday, before sending them out to begin deliberations. One juror was excused half way through the trial.

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