A former RTÉ journalist has lost his appeal against his conviction and 15-month sentence for sexually assaulting a woman while she slept.
Mícheál Ó Leidhin (38) was a political reporter for Raidió na Gaeltachta and was found guilty by a jury in July of sexually assaulting the woman at his former home.
Court of Appeal judge Ms Justice Aileen Donnelly on Thursday said that consent could not be implied when a person is asleep and that everyone has the right to feel safe while they sleep.
She said the argument of implied consent because of previous sexual activity was not raised at Ó Leidhin’s trial and described the grounds of his appeal as “novel”, “speculative” and “divorced from the reality of the trial”. She said this was not a point of substance to argue for a ruling of a perverse judgement and dismissed the appeal.
Ó'Leidhin’s lawyers had also submitted that the 2½ year headline sentence identified by the trial judge was too high.
Ms Justice Donnelly said that the lower end of the scale for sexual assault had a maximum of three years and four months’ imprisonment and that Ó Leidhin had been given more than a one-third discount in mitigation.
Ms Justice Donnelly said the trial judge took into account Ó Leidhin’s lack of previous convictions, his previous good character, the loss of his job with RTÉ and his co-operation with gardaí at all times when sentencing him. She said there had not been any disproportionality in Ó Leidhin’s sentence, the final three months of which were suspended.
Lorcan Staines SC, for Ó Leidhin, had argued before the three-judge court that the trial jury should have been told to consider “implied consent” in circumstances where the woman had engaged in consensual sexual activity with O’Leidhin before they fell asleep.
The victim told the trial that before going to sleep they spoke about the possibility of further sexual activity the following morning but when she woke, he was already on top of her groping her breasts.
Mr Staines added that Ó Leidhin’s account of what happened was that he tried to wake her with sexual activity but stopped when she told him to stop. He compared what O’Leidhin did to a scenario where a woman wakes her partner by performing a sexual act.
Under the definition, he said, that too would be an offence. “The people of Ireland should know if this is an offence and Mr Ó Leidhin should be able to test whether that is the law.”
Ó Leidhin, of Sunnyside, Malahide Road, Artane, Dublin, was convicted last April of sexual assault at his former home in south Dublin in the early hours of May 13th, 2018. The Ballinskelligs, Co Kerry native had denied the offence but his lawyers told a sentence hearing at the Central Criminal Court that he accepted the verdict of the jury.
The victim told the court that her mind and body had been violated and she had “lost her place in the world”.
The court heard that Ó Leidhin and the woman met on a night out in May 2018. They went back to his house in the early hours, where they engaged in consensual sexual activity. The woman said she told him she did not want to have sex as they had no contraception.
The woman gave evidence that when she woke up to find Ó Leidhin lying on top of her, she told him to get off and that he said something along the lines of ‘sorry, I’m horny’.
In a victim impact statement, the woman said the assault had left her traumatised. She said she was sexually violated when she was at her most vulnerable. She said the night of the attack was the last time she would ever go to sleep feeling safe from attack.
“My whole life and sense of self have been destroyed,” she said.