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An underage person can't consent to a sex act, judge tells jury

CourtsBy Morgan Flanagan Creagh
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An underage person could not consent to a sexual act even if they appeared to be an enthusiastic participant, a judge has told the jury in the trial of a then 15 year old accused of raping a 14 year old at a youth disco.

The Donegal accused allegedly pushed the 14-year-old girl into a nightclub toilet and raped her in a toilet cubicle. The pair were seen kissing shortly before the alleged incident.

The girl reported the allegations to her mother seven months later.

The man, now aged 20, is legally entitled to anonymity.

He has pleaded not guilty at the Central Criminal Court to rape and sexual assault of the girl at a nightclub in a Co Donegal town on December 23, 2010.

The jury of seven men and five women began deliberating this afternoon after Ms Justice Margaret Heneghan finished her charge.

She told the jury that consent was a constituent legal factor in the offence of rape but that the law says a person under 15 cannot consent.

She said if the prosecution had proved beyond reasonable doubt that the accused had sex with the complainant they must convict him of rape.

She said assault was intentional unwanted touching and sexual assault was assault where the touching was of an indecent nature.

Ms Justice Heneghan said that where a person below a certain age engaged in sexual activity it would not be consent even if the person appeared an enthusiastic participant.

She said that, additionally, a 1935 Act states that it it is not a defence to a charge of indecent assault on a person under the age of 15 years to prove that the person consented to the alleged act.

Peter Finley SC, defending, told the jury in his closing speech that it was not for his client to prove his innocence but for someone else to prove his guilt and this had not been done.

Gerard Clarke SC, prosecuting, said that the case put forward by counsel on behalf of the accused was that he was in the toilet cubicle and that “they were fondling and it got out of hand”.

The woman said that she was walking past the female toilets with the accused holding her hand when he pushed her inside and took her into a cubicle. She said she didn't know what was happening and asked him to let her out.

“He had me up against the wall. He pulled down my underwear. I tried to pull them back up but he had me pinned,” she testified.

She said he pulled down his trousers and raped her. She said she had never had sex before and it hurt and felt “excruciating”.

The trial heard that a female friend of the accused confronted him on the night and he told her he had done nothing. When she “kept at him” he told her, “yeah, she said yeah”, the witness said.

The accused told gardaí that he had no recollection of being in the girls' toilet in the nightclub.

Cross examining the woman, Peter Finlay SC, defending, said: “I suggest what happened is that you went into the toilets with this young boy and the two of you were fondling each other and it got out of hand.

“He sat on the toilet and you sat on top of him and you both tried to do something but failed”. The woman denied this is what happened.

She said she was asking the accused to stop and to let her out of the cubicle. She testified that she had kissed the boy before the alleged assault after her girl friends encouraged her 'to meet' him.