Rape conviction quashed after judge banned questions about girl’s use of contraceptive pill

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The girl had asserted that she was a virgin before her encounter with the now 25-year-old man, who had pleaded not guilty to rape and defilement at his home between 4-5 October 2014, when he was 21.

He was found guilty by a Central Criminal Court jury and jailed for eight years by Mr Justice Patrick McCarthy on 29 July 2016.

After the jury verdict, the man’s barrister, Giollaíosa O’Lideadha SC, said his client continued to maintain his innocence.

The Court of Appeal quashed the man’s conviction yesterday over a ruling which prevented the defence from asking questions of the complainant as to why she was on the contraceptive pill, and remained on it despite some adverse medical reactions, at the time.

It was the defence case that all sexual activity was consensual and that the complainant had been involved in sexual activity, including intercourse, with another male shortly before his encounter with her.

It was the prosecution’s case, based on statements by the complainant, that although she had boyfriends, she had not previously been sexually active and was a virgin prior to her encounter with the man.

During the trial, the defence sought to question the complainant on her sexual history, particularly in respect of messages on her phone which carried sexual innuendo and at least one photo of a penis. The purpose was to establish that she had been sexually active and had probably engaged in intercourse immediately prior to the alleged rape.

The defence also sought to introduce evidence that would assist in establishing that the complainant was taking the pill not just for medical reasons but at least partly for contraceptive purposes in contemplation of such activity.

In his ruling, the trial judge had said the texts and other communications did not “stretch” to admissions of having close sexual relations and that it would be “degrading” to the complainant to cross examine her on those.

The trial judge said the defence had put forward a “bald proposition” that the girl was on the pill because she was sexually active. However, medical material showed the girl was on the contraceptive pill for medical reasons “quite unrelated to the purpose of inhibiting” pregnancy, the trial judge had said.

Giving judgment in the Court of Appeal, Mr Justice Alan Mahon said these were difficult and complex issues for the trial judge to balance between protecting the rights of the accused and excluding evidence which was irrelevant and prejudicial.

The Court of Appeal found no fault with the judge’s rulings in relation to material on her mobile phone.

The court did, however, have a concern in relation to the ruling preventing any questions being raised as to the reasons why the complainant was on the contraceptive pill or remained on it despite some adverse medical reaction to the medication.

There was, at least, a possibility that the jury might be persuaded that a primary or secondary motivation for taking the pill, and remaining on it, was to facilitate sexual intercourse and that such sexual activity as occurred in the course of her confrontation with the man “was not the first occasion on which she had engaged in sexual intercourse”. It was “an important credibility issue,” Mr Justice Mahon said.

“That issue ought to have remained open to greater clarification aided by cross examination. It is a matter which ought properly to have been left to the jury for consideration.”

Accordingly, Mr Justice Mahon, who sat with Mr Justice George Birmingham, president of the Court of Appeal, and Mr Justice John Hedigan, allowed the appeal on this ground, set aside the man’s conviction and ordered a retrial. The man was admitted to bail to appear before the Central Criminal Court at the next list to fix dates.

Ruaidhrí Giblin, Ireland International News Agency Ltd.