'Silence is not consent': court orders AG to reconsider rape case

A court has overturned the Attorney General's decision not to prosecute a care worker accused of raping a former patient in her home, in a ruling that declared a person's silence can never be treated as consent to sex. 

“The granting of consent cannot be presumed from her silence. On the contrary, her silence is to be understood as the lack of consent,” Mr Justice Mark Simiana ruled as he ordered the case to be sent back for reconsideration.

The ruling marks a significant development for Emma Agius, who has been seeking justice since she reported that she was raped in her home by a care worker who had gone there to assist her.

Now 27, she maintains that she never gave consent and pretended to remain asleep when she woke to find him touching her.

A magisterial inquiry had previously interpreted her silence as consent – and this led to the Attorney General deciding that there were no grounds to prosecute.

However, she challenged the decision in the First Hall of the Civil Court, where Mr Justice Mark Simiana rejected this reasoning, stating the opposite, and ordered the case to be reconsidered.

Lawyer Lara Dimitrijevic, from the Women’s Rights Foundation, who represented Agius, said “This decision is very powerful… it is a win for Emma who has had the courage to speak publicly about this horrific experience.”

She said that the civil court ruled that silence was not consent and once again reinforced that consent requires an “enthusiastic yes” – something the Attorney General should be aware of.

In 2022, Agius told Times of Malta she could “not move on” after an alleged rape in her home at the hands of her Mount Carmel carer three weeks after being discharged from the hospital.

The case dates back to April 2022, when Agius filed a police report alleging that she had been raped by the care worker.

She explained that she had previously spent time at Mount Carmel Hospital receiving treatment for borderline personality disorder.

During her stay there, she met the care worker, and they remained in contact.

After leaving the hospital, she went through a difficult period, during which the care worker visited her home to assist her.

According to her account, he stayed over, and she fell asleep. When she woke, she felt him touching her but pretended to remain asleep. He then raped her, stopping only when she pushed him off and eventually told him to leave.

Following her report, her lawyers were informed that the magisterial inquiry had concluded that the case did not constitute rape, as the sex was deemed consensual.

As a result, the Attorney General decided not to prosecute the care worker.

Agius challenged this decision before the First Hall of the Civil Court.

The court disagreed with the Attorney General’s interpretation of the law on what constitutes rape. The AG had argued that there were no grounds for criminal action because Agius had not manifested her objection.

However, the court emphasised that the law clearly requires the absence of consent for the crime to be established, and that violence is not a necessary element.

It further stressed that consent cannot be presumed from silence - on the contrary, silence should be understood as a lack of consent.

While noting that the ruling does not determine whether the care worker is guilty, the court concluded that the original decision was not based on a correct interpretation of the law and was therefore invalid.

'I carry every woman forced into silence for her safety'

In comments to Times of Malta on Monday, Agius said she was not just fighting justice for herself.

"I stand here today representing not just my story. I am carrying, in my mind, 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."

"This fight was never only mine," she said.

"Because this is bigger than just one police report, one abuse, or one injustice. My voice is not mine alone. This is our win! Today, I refuse shame. And I refuse to stay silent. This is only the beginning, but the future is on our side."