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Child rape accused cleared because alleged victim had touched him on invitation, appeal told

Date
2023-01-26

Stage
Appeal

Primary locality
Dublin

County
Dublin

Summary

In a 2023 appeal, the State argued that a 34‑year‑old man was wrongly acquitted of rape and sexual assault of a six‑to‑seven‑year‑old girl in 2005. The jury had been directed by Judge David Keane to find the man not guilty, citing UK case law that a person who invites another to touch them cannot be convicted of assault. The State cited Fairclough v Whipp and DPP v Rogers, arguing that the alleged victim's touching was voluntary and that the man's alleged actions did not constitute an active assault. The State also noted the victim's statement that the man "kind of just stopped" during the alleged assault, suggesting agency. Counsel for the respondent, Fiona Murphy, countered that the victim's touch was initiated by invitation and that no force was used, challenging the State's reliance on the UK cases.

Who, what, where, when and why

What: Report matter: Child rape accused cleared because alleged victim had touched him on invitation, appeal told. Charges or matters: one count of rape and two counts of sexual assault. Procedural stage: appeal. Findings: Acquitted

When:

January 1, 2005 Incident
September 30, 2005 Incident
June 30, 2022 Incident
2023-01-26 Publication

Why: Counsel said it was offensive to suggest that there had been no assault just because there had been no movement by the respondent. CNI source report