Appeals court confirms rape sentence over non-consensual anal penetration

DISCLAIMER: This article contains graphic details that some readers might find disturbing

The Criminal Court of Appeal confirmed a three-year prison sentence against Bjorn Raake, a 30-year-old German national, after he was found guilty of non-consensual anal penetration of a French woman in 2021.

The case was presided over by Madam Justice Natasha Galea Sciberras.

The incident took place during an intimate encounter arranged beforehand between the two individuals, who had met through the dating app Tinder.

After exchanging messages which gradually turned sexual, the pair met in Valletta at 7pm on the 9 October 2021 and later went to Raake’s apartment in Sliema, where they engaged in sexual activity.

The Court made it clear that although the victim voluntarily entered into the situation and engaged in consensual sexual acts with Raake, she had explicitly and repeatedly expressed that she did not want anal sex.

Despite this, Raake penetrated her with his fingers against her will, which the Court described as a "clear, manifest, and categorical" lack of consent. The victim testified that she made her refusal clear both before and during the act, reacting immediately by pulling away and asking the victim what he was doing.

During the trial, the prosecution presented WhatsApp messages exchanged between the victim and Raake before and after the incident, as well as messages she sent to her friends while still at his apartment.

Court-appointed experts confirmed the authenticity of these communications. Additionally, friends of the victim testified that the next day she was visibly emotional, with some saying she was crying and appeared “very upset.”

Raake appealed the initial three-year prison sentence, arguing that the first court had misinterpreted the facts, that the interpretation was biased against him, and that the sentence was excessive.

He even claimed that he had not understood the victim was refusing anal penetration with his fingers, particularly in light of the fact that she had allowed him to orally stimulate her anus. However, the Court of Appeal found these to be unconvincing excuses and concluded that the victim had communicated her lack of consent both verbally and through her body language.

The Court also referred to the legal concept of consent, as redefined in Malta’s 2018 legislative amendments, where consent must be freely given and unequivocal, taking into account the person’s emotional and psychological state.

The fact that there was general sexual activity did not imply consent for a specific act such as anal penetration, which the Court deemed to be non-consensual in this case.

After carefully examining the evidence, messages, victim’s testimony, and Raake’s unconvincing statements, the Court of Appeal concluded that the first court had correctly evaluated the facts and that the sentence imposed was proportionate to the severity of the offence. As such, the appeal was rejected, and the original sentence was confirmed: three years of imprisonment, a three-year protection order in favour of the victim, and the payment of €1,005.97 in expert costs. This judgment further underscores the importance of explicit consent in sexual relations and reaffirms that an individual’s bodily autonomy must always be respected.

If you or someone you know needs support, click here to reach out to professional help services availible in Malta.