Editorial: Silence is not agreement

The Maltese courts recently delivered a ruling that was at once troubling and reassuring: troubling for what it revealed about past interpretations of the law, and reassuring for the clarity it now brings.

In a landmark decision, Mr Justice Mark Simiana overturned the attorney general’s refusal to prosecute a care worker accused of raping a former patient in her own home. Central to the ruling was a principle that should never have been in doubt: silence is not consent.

The case concerns Emma Agius, who has been seeking justice since reporting that she was raped by a care worker – who she met during her stay at Mount Carmel Hospital and who she claimed had entered her home to assist her when she reached out for help.

She has consistently maintained that he raped her since she first spoke up in 2022.

That she did not consent, explaining that she pretended to remain asleep after waking to find him touching her, then raping her.

Yet, a magisterial inquiry had interpreted her silence as consent.

On that basis, the attorney general concluded there were no grounds for prosecution.

This is the deeply worrying part.

A woman reported rape in the supposed safety of her own home – by someone she met through a care setting. The response was to argue that no crime had occurred because she did not physically or verbally object.

That reasoning has now been rejected. The court emphasised that silence, far from implying agreement, can just as easily reflect fear, shock, or an instinct for self-preservation.

While the ruling does not determine guilt, it restores the correct interpretation of the law – that silence is not consent – and ensures that the case is reconsidered on proper legal grounds.

Emma challenged the decision, taking her case to the First Hall of the Civil Court. In doing so, she not only fought for her own justice but also exposed a dangerous legal misinterpretation that could have far-reaching consequences.

Her words resonate beyond her personal ordeal: she stands, she said, for “every woman who has been forced into silence for her own safety… those who tried to seek justice and never received it, and those who are too afraid to speak because of the fear of not being believed.”

The obvious question now is: how many more Emmas are there?

Figures presented in parliament show that 52 cases of rape of women were reported to the police last year. Even the home affairs minister has acknowledged that not all cases are reported, citing persistent social and cultural barriers.

Silence is already a feature of how sexual violence manifests in society. To then interpret that silence as consent is not just legally wrong – it is an injustice.

Recent history offers further cause for concern. In another case, a court confirmed that a priest had brokered a €7,000 payment to a family in exchange for silence.

They dropped allegations that their 14-year-old daughter had been raped in 2008. At the time, the law required the victim’s backing for prosecution, meaning her withdrawal effectively closed the case.

Different circumstances, but a similar outcome: silence – whether imposed or negotiated – resulted in the absence of justice.

The courts have now taken an important step. But rulings are not enough. No victim should feel that their credibility depends on how loudly they resisted. No system should ever mistake fear for consent.

We need a justice system – and a wider culture – that recognises what silence can mean, listens to it, and creates the conditions in which victims feel safe enough to finally speak.