The Supreme Court has dismissed an appeal by C O’R against his conviction for raping his mother, ruling that no error in the trial judge’s jury direction was identified against him. The judgment also sets out guidance for trial judges on explaining consent and belief in consent in rape cases.
A jury convicted C O’R in July 2012 of raping his mother at a Dublin address on the night of 2 March 2008 or in the early hours of the next day. The Central Criminal Court sentenced him to 15 years in prison, with the final two years and six months suspended. The Court of Appeal dismissed his conviction appeal in March 2015.
The Supreme Court had granted leave on two questions about the mental element of rape: whether an honestly held but unreasonable belief in consent could excuse intercourse, and whether the law required a man to ascertain that a woman could and did consent. At the hearing, the accused’s argument focused mainly on whether the trial judge’s directions to the jury were adequate. The court said that argument did not fall within the grounds on which leave had been granted, but allowed some latitude because the appeal took place during a transition to the new appellate procedures.
At trial, the mother said she found herself on the floor with her son having intercourse with her and repeatedly told him to leave her alone. C O’R said the encounter followed consensual kissing and dancing, and that she said “leave me” later when he offered to help her up. The jury’s guilty verdict resolved those factual disputes against his account.
The Supreme Court held that the judge’s direction was adequate, though “somewhat thin”. The judge had told jurors to consider whether C O’R believed the woman was consenting and to weigh the presence or absence of reasonable grounds alongside other relevant matters. But the judge also said that a belief she “might be consenting” required a not guilty verdict. The Supreme Court said this misstated the law in the accused’s favour: the relevant belief must be that she was actually consenting.
Under the law described by the court, rape requires intercourse without consent, together with proof that the accused knew of the lack of consent or was reckless as to whether the woman consented. An honestly held, even unreasonable, belief that she was consenting can provide a defence, but the belief must be genuine; merely thinking she might be consenting is not enough. The court said trial judges should tailor their directions to the issues and evidence in each case.
The appeal was dismissed. The court did not overturn the conviction or make a new finding on the trial facts.