The Court of Criminal Appeal has refused to overturn the conviction of a husband in what was the first successful prosecution for marital rape in this State.
The Sligo man was jailed for six years for the rape of his wife weeks after she gave birth.
The 46-year-old man had been convicted by a jury in the Central Criminal Court on November 17th, 2005, and sentenced to six years in January last by Mr Justice Paul Carney.
Refusing the appeal at the Court of Criminal Appeal yesterday, Mr Justice Nial Fennelly, presiding, said the now legally separated woman had had seven pregnancies with four surviving children and gave birth to her youngest less than two months before the incident.
She had explained to her husband that she did not want intercourse because she did not want any more babies, the judge said.
The man had contended the trial judge erred in law in admitting evidence that the woman had refused to agree to intercourse earlier on the night of the alleged offence.
This evidence was the subject of a count of attempted rape at a previous trial and the man was acquitted on that count. Admitting evidence of absence of consent relating to that allegation amounted to an appeal of the acquittal, it was argued.
Mr Justice Fennelly in dealing with the acquittal on the attempted rape count said the court was satisfied that that was an "incorrect approach" because the evidence about the woman's unwillingness to have sex at 12.30pm was just as relevant as the evidence of three or four hours later.
Another ground of appeal was that the trial judge erred in how he had directed the jury about the law on recklessness in the context of a rape charge. The trial judge had directed the jury that the man was reckless if he ignored the risk that the complainant was not consenting, even if he was unaware of that risk.
On the recklessness issue, the court said this matter had been dealt with three times by the trial judge and the jury had also identified the issue of recklessness.
The charge to the jury by the trial judge was not defective on the lines suggested and the court would dismiss the appeal, he said.