Child molestor's acquittal overturned after appeals court finds application of the wrong law

The Court of Criminal Appeal has overturned an acquittal by a Gozo magistrate, in a case of non-consensual sexual acts with a minor, after noting that the magistrate had based his decision on the wrong section of the Criminal Code.

Richard Attard, 62, of Ghajnsielem was accused of sexually assaulting a 13 year-old girl at the Xewkija playground in November 2019, after luring her into a public toilet where he groped and kissed her neck.

The girl had testified that the accused had called out to her and, thinking that he needed some form of assistance, she had gone to see if she could help. She had described the man as “old, confused and grey haired.”

The original judgment has been taken offline, but the court of Magistrates (Gozo) had cleared the man, basing itself on the interpretation of a different section of the criminal Code to that specified in the charges. The case law cited by the magistrate confirmed the misinterpretation, argued the Attorney General in his appeal.

Amongst other things, the Attorney General had argued that although the law did not provide a definition of what an act of a sexual nature was, this could be deduced from the circumstances of the case.

In her judgment on the matter, Madam Justice Consuelo Scerri Herrera disagreed with the Court of Magistrates, stating that the man’s actions did indeed amount to “libidinous acts.”

The judge, citing many works by legal scholars and prior case law, established that the man’s actions indicated his intent, despite his protestations at having done nothing wrong.

“The kiss was a violent one,” said the court, “given in a public place in circumstances which showed the libidinous intent of the active subject and as a result the facts of the case cannot fail to be taken as being offensive to modesty and public morals, because it is not right that a woman is subjected to violent acts of libidinous passion.”

The court said it had “no doubt that this violent attempt on the modesty [of the victim] and that consequently the accusation is satisfactorily proven.”

The court of appeal upheld the man’s acquittal on corruption of minors, but overturned it with regards to committing a non-consensual sexual act on a minor.

However, it her considerations on punishment, the udge took into account medical testimony about the accused as well as his relatively clean criminal record. “The punishment should be towards the minimum due to the nature of the acts committed by [the accused].”

Finding him guilty of committing a non-consensual sexual act on a minor, the court placed Attard under the supervision of a probation officer for 3 years.

Inspectors John Spiteri and Josef Gauci prosecuted.