A jury was directed to discover a man accused of the rape and abuse of a younger woman when he was a young person not responsible on the idea that there could possibly be no assault as she had touched him on his invitation, the State has informed the Court docket of Enchantment.

The State has appealed the acquittal of the 34-year-old man, who was discovered not responsible of the rape and sexual assault of the younger woman after the trial decide referenced UK case regulation in sexual assault circumstances.

The person, who can’t be named as a consequence of authorized causes, was charged with one depend of rape and two counts of sexual assault. The fees embody an allegation that between January 1, 2005, and September 30, 2005, at a location in Dublin, he sexually assaulted a woman by placing his penis in her mouth. She was aged between six and 7 on the time and he was aged 16.

He pleaded not responsible and stood trial earlier than Mr Justice David Keane on the Central Prison Court docket on June 30, 2022.

On the Court docket of Enchantment on Thursday, counsel for the State John Fitzgerald SC stated that Mr Justice Keane had directed the jury to search out the respondent not responsible. He stated Mr Justice Keane had made references to UK case regulation that decided in circumstances the place an invite was made to somebody to the touch an accused particular person they usually did, then the inviter can’t be convicted of assault.

UK case regulation

The references made had been to the case of Fairclough v Whipp, through which a person informed a nine-year-old woman to the touch his uncovered penis and she or he did, and DPP v Rogers, through which a person obtained his 11-year-old daughter to masturbate him.

Mr Fitzgerald outlined sexual assault as undesirable touching, together with touching the mouth of one other with the penis.

He referred to the assertion by the alleged injured celebration that the respondent “sort of simply stopped” through the alleged assault. He stated that this demonstrated there had been company on this case by the respondent.

Counsel stated it was offensive to recommend that there had been no assault simply because there had been no motion by the respondent. Mr Fitzgerald stated that the case of Fairclough v Whipp was an instance of “zombie regulation,” one thing that had remained stubbornly as a regulation and had by no means been overruled.


Ms Justice Isobel Kennedy famous there have been three counts on the unique indictment coping with allegations by the complainant that included being requested to the touch the person’s penis. There have been allegations concerning the removing of clothes, and it was additionally alleged that the respondent had inserted his fingers into her vagina and there had additionally been oral intercourse.

Mr Justice John Edwards stated if the complainant had been invited to the touch his penis and she or he put her hand on it, nothing energetic was required on the a part of the perpetrator.

“However an oral sexual act is a penetrative act, not merely passive. She needed to settle for his penis into her mouth, so there was a coming collectively through which he participated,” stated Mr Justice Edwards.

“The act of the penis getting into her mouth was an assault, however Mr Justice Keane didn’t agree and issues ended there,” stated Mr Fitzgerald.

Counsel for the respondent, Fiona Murphy SC, stated there had been “a gap within the case” as there was no proof of any drive getting used. “Pressure is an ingredient of the offence of assault,” she stated.

Mr Justice Edwards stated that assault could also be unintentional touching with no point out of drive, and Ms Justice Kennedy stated assault is an unwelcome touching. “That will be positive if the touching is by the accused particular person. The touching on this case was accomplished by the invitee,” stated Ms Murphy.

Relating to the reference to the respondent stopping through the alleged assault, Ms Murphy stated there was “an evidential gap within the case”.

“He stopped the contact initiated by her,” she stated. “The complainant stated there was no ejaculation. The contact stopped, the contact that she initiated at his invitation.” Mr Justice Edwards stated there have been an terrible lot of weighty points to contemplate and dominated that the courtroom would reserve judgment within the matter.

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