Man cleared of rape af­ter com­plaint with­drawn

Malta Independent - - NEWS -

A man has been cleared of rape on ap­peal, af­ter the in­jured party with­drew her com­plaint and a court ruled that no il­le­gal ar­rest was in­volved, ren­der­ing the crime im­pos­si­ble to pros­e­cute.

35-year-old Omar Pisani had been charged with a num­ber of of­fences, in­clud­ing rape, il­le­gal ar­rest, vi­o­lent in­de­cent as­sault and breach­ing court or­ders af­ter a woman filed a po­lice re­port say­ing that he had raped her in his car in April of 2012.

The woman had claimed that her hus­band had given her a lift to the Casino in Vit­to­riosa and dropped her off a short dis­tance away be­cause of traf­fic. As she was walk­ing to­wards the Casino she heard Pisani’s car ap­proach­ing and had hid­den be­hind some parked cars. A short while later, Pisani had called her on her mo­bile phone from a pri­vate num­ber. Think­ing it was her daugh­ter, whom she had just spo­ken to on the phone, she had an­swered.

The ap­pel­lant had then seen her and walked up to chat. He was vis­i­bly drunk and was telling her that he wanted to have sex with her. She tried to dis­suade him but even­tu­ally sug­gested that the two have a cig­a­rette. Af­ter that he opened the car door and she got in. Al­though she said she was scared, she made no at­tempt to get out or sum­mon as­sis­tance, not even when he stopped at a gro­cery store to buy wine.

When they ar­rived in an un­in­hab­ited area at Xgha­jra, she claimed the man had beat her and tied her up to have sex with her. She said she had let him do what he wanted and later drank some wine and had sex three more times with him be­fore go­ing to sleep. She filed a re­port four days later, af­ter ex­chang­ing a num­ber of text mes­sages with the ac­cused.

In June 2015, he was con­victed and sen­tenced to 3 years and 5 months in prison.

He had filed an im­me­di­ate ap­peal. The crime of rape is nor­mally pros­e­cutable only if there is a crim­i­nal com­plaint by the in­jured party, but in cases in­volv­ing il­le­gal ar­rest, the po­lice are al­lowed to pros­e­cute of their own ac­cord (ex of­fi­cio). Pisani ar­gued that the po­lice were not al­lowed to pros­e­cute him ex of­fi­cio as there was no ev­i­dence of il­le­gal ar­rest.

Pisani’s lawyer, Franco De­bono, had ar­gued that the first court should have ab­stained from rul­ing on the rape charge af­ter the woman’s with­drawal of her crim­i­nal com­plaint. De­bono also ar­gued that the pun­ish­ment was dis­pro­por­tion­ate, cit­ing case law which demon­strated how peo­ple with pre­vi­ous con­vic­tions had been given sec­ond chances by the court sim­ply for chang­ing their ways.

The court of Ap­peal, presided by judge An­to­nio Mizzi, ob­served that the first court had failed to take into con­sid­er­a­tion the in­jured party’s forgiveness and with­drawal of her crim­i­nal com­plaint be­cause of the il­le­gal ar­rest, which ren­dered it pros­e­cutable ex of­fi­cio.

“This court has stud­ied the acts of this case closely and from an ex­am­i­na­tion of the wit­ness tes­ti­mony, es­pe­cially that of the in­jured party, is not of the opin­ion that the woman was held against her will,” ruled the judge. To the con­trary, he said that it ap­peared that when the woman had an op­por­tu­nity to avoid him, she had failed to do so, say­ing it was “al­most a sit­u­a­tion where she wanted him to find her.”

“The parte civile did noth­ing to stop the ac­cused from putting her in his car. Sub­se­quently she had an­other op­por­tu­nity to get out and leave... but there, too, she did noth­ing.”

But the judge said the court of first in­stance was cor­rect in find­ing him guilty of of­fend­ing pub­lic de­cency and morals in a pub­lic place. For this rea­son, the Court of Ap­peal con­firmed that part of the judg­ment and cleared him of the other charges, re­duc­ing the pun­ish­ment from three years and five months in jail to a three-year Pro­ba­tion Or­der.

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