A Donegal businessman has been found guilty of engaging in a sexual act with a teenage girl in 2011.
He was found guilty of defilement by a jury at Donegal Circuit Court.
The man, who is now in his 30s and cannot be named at this time for legal reasons to protect the identity of the victim, pleaded not guilty to the charge.
The man was charged with one count of defilement of a child under 17 years of age, an offence contrary to section 3 (1) of the Criminal Law (Sexual Offences) Act, 2006, relating to an alleged incident in the south of the county in 2011.
As the verdict of the jury – guilty – was read, the woman wept and was hugged by family members.
The case ran for three days and the court heard that the accused, who was also accompanied by family members during the trial, had turned 18 before the alleged incident while the complainant was 15 years old.
The woman, who is now in her late 20s, told Ms Fiona Crawford BL, prosecuting barrister, that she was in her Junior Certificate year at school at the time and was friendly with a sister of the accused. They were in the home house of the accused man, getting ready to attend a teenage disco, on the evening the alleged incident was said to have occurred.
She recalled being in the house with her friend while her friend’s brother and his friend were also present. She said the two males gave them two alcoholic drinks in wine glasses.
At one stage of the evening, she said the accused came into a room and started kissing her. She said this “didn’t bother” her, but later, as they were exiting another room, having got more alcoholic drinks, she said the accused “grabbed me by the arm” and pulled her towards a toilet.
She said he pushed her into the toilet and closed the door behind them. The woman alleged that he pushed her to the ground and placed his penis inside her mouth before then pulling her up and putting his penis inside her vagina.
“I said ‘stop’ and he wouldn’t listen,” she said. “I just froze. He eventually stopped, but it wasn’t when I asked him to. It was when he was finished.”
The woman told Ms Crawford that she felt “fear” and “shock”.
“I had never had sex with anyone before or did anything like that,” she said. “I was blindsided and it was awful.”
She recalled seeing sore and later realised that she was bleeding. She said she was told by the accused before he exited the toilet not to tell a person who he was going out with at the time.
The accused man was represented by Mr Garnet Orange SC, with Mr Peter Nolan BL and instructed by solicitor Mr Rory O’Brien.
The woman told Mr Orange that the events ewer very clear in her mind. She said she attended a birthday party for the accused man in the weeks prior to the incident and denied that she “fancied” him at the time.
She said it was “completely wrong” that there was no alcoholic drinks given and denied that she was “flirting” with the accused man.
Mr Orange suggested that the woman had “led the way” and that she had “enthusiastically given” her consent.
Mr Orange asked if she had “great craic” later in the night while at the disco and she said she had “some fun”, but recalled telling a friend that the man had pushed her into a toilet and forced her to have sex.
The man’s barrister suggested that the woman might have wanted the accused to dump his then girlfriend and be with her instead. “I wanted nothing to do with him,” she said.
She said the accused would have known that the girls were going to a teenage disco. “We had never been to any overage discos before,” she said.
Mr Orange put it to the woman that social media posts from her at the time were “at odds” with someone who had been the victim of a sexual crime. “I was in a bad place,” she said.
She told Mr Orange that it was “absolutely not” the case that she “put yourself in front” of the accused and “planned to get with him.”
“I told people that he forced me to have sex with him,” she said.
The court also heard evidence from a woman who was a close friend of the complainant at the time and from her mother, who had told Gardai that she noticed her daughter’s behaviour change. “Her OCD came back and she kept washing her hands until they were red,” she said.
Garda Inspector David Durkan, who was a detective sergeant at the time the report was made in 2017, recalled taking a written complaint from the woman.
“She was upset in relation to what she had disclosed,” Inspector Durkan said.
He and Garda Claire Ramsey worked in tandem on the investigation and during the summer of 2018 they first interviewed the accused, who was working abroad at the time.
In an interview with Gardai, the man said he felt the girls was “kinda coming onto me” and said that it was she who suggested they go somewhere where their friends “wouldn’t be coming in and out of”.
The man claimed that he “felt guilty” during the act and stopped. He told investigating Gardai that “she was annoyed”.
He claimed that he was unsure of the exact age of his sisters at the time. He denied the allegation put to him in the interview.
“There was no-one pulling anyone in,” he said and claimed the two had “walked in” to the downstairs toilet.
After his period of detention was extended, the man was interviewed a second time. During this, he said he and the complainant had “kissed once or twice” during that evening when their friends were “coming in and out” of the room.
He told Gardai: “I never laid a hand on her”.
When asked about the allegation that he had shoved her to the ground and forced her to perform a sexual act, he replied: “I can’t understand this bullshit”.
Later, he told Gardai: “No. It’s all lies.”
He said there was “full consent” to the sexual encounter and when Gardai told him the woman had asked him to stop, he said: “No comment to make as it is lies, simple. She never once mentioned stop.The only time stop was mentioned was when she asked me ‘why did you stop’?”
Gardai asked the man if it had crossed his mind that there was something wrong with having sex with his sister’s younger friend, he said: “No. I didn’t know this girl’s age.” He said he didn’t know her age and “didn’t have any way of knowing her age”.
Allegations of a further incident a few days after the initial event were put to the man, which he also denied.
Garda Claire Ramsey gave evidence of taking statements and having obtained birth certificates as exhibits in the matter.
Ms Crawford, in her closing remarks, said both parties say that sexual intercourse happened. She reminded the jury that consent was not an issue in the case as anyone under-17 cannot legally consent to sexual intercourse.
“What there is a law against is having a sexual act with a child who is under 17,” Ms Crawford said.
She said the accused man admitted to Gardai that he knew the girls were going to a teenage disco. Ms Crawford said the complainant was over 600 days short of when she could consent to sex.
She told the jury that it was her belief that the accused “never thought that that 15-year-old girl would come in front of you and be big enough, brave enough and bold enough to come in, stand in front of you and tell you what happened on that night in 2011.”
In closing, Mr Orange said that the jury should not deal with “mathematical equations” but should deal with the “elephant in the room”.
He said the complainant was “there to be seen” by the accused.
“One takeaway is that I don’t think I have ever seen the situation outside of a teenage disco with anyone seeking to give the impression that they are 14-15 years old – particularly the woman. I don’t want to be seen to be victim blaming or anything like that. But, imagine being an invisible observer in that household and you have two teenage girls getting ready to go out: Are they emphasising the 14-15-year-old or emphasising older teenagers?”
Mr Orange said the complainant “knew she was behaving outside of her age”.
“Whatever happened required two people to play that game; there had to be some degree of cooperation,” he said. “Everything happened by agreement in that toilet.”
After deliberating for just short of two-and-a-half hours, a jury of 10 men and two women found the accused guilty. After failing to come to a unanimous verdict, the jury returned a guilty verdict by a 10-2 majority.
Mr Peter Nolan BL, for the accused, sought the preparation of a probation and welfare report on behalf of his client.
Judge Aylmer remanded the man on continuing bail and he is due to be sentenced at the next session of Donegal Circuit Court in April.