Man acquitted of Paceville rape charges after court says evidence did not support woman's account

A man has been acquitted of a rape that was alleged to have happened on a beach in Paceville after a court ruled that there was no evidence, medical or otherwise, that the encounter had not been consensual.

Ahmed Hamed from Syria, faced up to 12 years in prison after he was charged with rape and with committing a non-consensual act of a sexual nature on a Spanish woman during the night between 23 and 24 February 2019.

The police had arrested Hamed in Paceville after he was identified by the alleged victim.

In the judgment, which was handed down yesterday, Magistrate Gabriella Vella examined the definition of rape in Maltese law as it stands today, which centres around the issue of consent.

Physical or moral violence used to be a requisite for a rape conviction, but the law was changed in 2018 to criminalise non-consensual sexual intercourse. “In truth, the element of consent was always a central element for the crime of rape,” noted the magistrate in her decision.

The accused and the alleged victim gave diametrically opposed accounts of what had happened, noted the court, with the woman insisting that she had been raped whilst the accused claimed the encounter to have been consensual and that it had started on the insistence of the woman.

The court said that there was no doubt that the two had sex, as this was confirmed by both parties’ testimonies as well as DNA evidence.

But there was disagreement even on the location of the encounter, observed the magistrate, with the accused saying it took place on the rocks near the Dragonara casino and the other party saying it happened in St George’s Bay, but added that a conflict in evidence did not necessarily always lead to an acquittal.

The alleged victim had told the court that she had been out celebrating her birthday with some friends and had met the accused at a club in Paceville. After striking up a conversation, they walked together to a nearby beach, where the woman claimed that the accused had pushed her face into the sand and forced himself on her, whilst she resisted and tried to escape.

A gynaecologist who had examined the woman soon after the incident told the court that he noted superficial scratches and bruising on her arms and abdomen, but had found no signs of trauma in her genital area, concluding that no evidence of internal or external sexual trauma was present.

The court observed that while the woman’s friends had testified that she appeared to be in a state of shock and agitation after the encounter, they had simply taken her home and left her there alone, saying that this “seriously impinged on their credibility.”

The fact that the woman had consumed some alcohol did not automatically render her drunk and incapable of consenting, said the magistrate. “What the court is saying, in short, is that because a person who participated in sexual activity with another person on an evening where alcoholic beverages had been consumed, this cannot and should not be taken to automatically mean that free and voluntary consent for this sexual activity was not given.”

Weight was given to the fact that the woman had testified to being “a little bit drunk because I was in a place [of entertainment] but I did not drink that much because I wanted to control everything…”

The court noted that the woman had never alleged that she was not aware of what she was doing and what was happening, observing that, to the contrary, she had voluntarily gone to the beach with the accused. It was evident that the lack of consent alleged by the woman was tied to her physical resistance of the accused’s advances and not to intoxication. This resistance, however, was not borne out by the evidence which “absolutely did not match the version of events given by her.”

The magistrate said she “could not reach a conclusion, much less a conclusion beyond a reasonable doubt,” that the accused had raped the woman, clearing him of all charges.

Lawyer Noel Bianco appeared for Hamed.