Woman did not report first alleged rape by husband for fear he would kill her

Updated 6pm

A woman told a court she did not report her former husband when he first raped her in January 2019 fearing he would kill her.

The woman, who cannot be named by court order, testified in the second day of the trial by jury against a 38-year-old man from Tarxien. The man is accused of raping his wife in 2019, harassing her and being in possession of cocaine. He denies the charges.

On Thursday, the woman told the Criminal Court that on the day she was raped, she had to keep silent in order not to wake up their two children, “who had already seen enough”.

The woman was allegedly raped at around 4am when the man returned from the band club. He allegedly told the woman “not to cry” as it aroused him.

She recalled going to the health centre complaining of pain and discomfort and was told to report the matter to the police.

In her report, the woman said their relationship of over a decade, had ended after the man frequently insulted her and was aggressive towards her. Moreover, the man allegedly would take her back to their matrimonial bed whenever she chose to sleep with their children.

The woman recalled the man was drunk when he raped her, and fell asleep soon after. She added that she slept in the same bed with her alleged aggressor but said it was “useless” to leave the bed. The woman felt mentally broken and recalled him telling her that she was his wife and that he could do anything.

When asked why she did not report the first rape, the woman replied: "I was afraid he would kill me". 

Her lawyer had encouraged her to report him to the police. The accused was sent a legal letter to refrain from physical contact with the woman and warning him that she would report him if he persisted.

The man had a drinking habit which caused the couple financial issues.

The woman also recalled the accused threatening to make her and their children homeless, and the man had entered into a promise of sale agreement behind her back.

Medico-legal expert, Mario Scerri, and  gynaecologist Alison Micallef Fava, testified before the court. The pair examined the victim when she went to Mater Dei Hospital accompanied by a social worker and a police officer. They both told the jurors that there were no signs of trauma on her body.

The testimony of DNA expert Marisa Cassar was read out in court, and the jurors heard that the expert found a mixed genetic profile which indicated that they had sex.

A friend of the alleged victim also testified.

The accused chose not to testify.

The defence started making their final submissions after the evidence stage was closed.

Prosecution, defence make their case

On Thursday afternoon, legal aid lawyer Simon Micallef Stafrace made his final submissions before the jurors retire to their chambers to deliberate. This was followed by the Attorney General’s reply, delivered by prosecutor Darleen Grima.

Grima argued that rape is not an issue of violence but one of consent, as she underlined that the existence of the sexual was not being contested in this case. The prosecutor said the word “no” needs to be taken into the context of the non-verbals as she invited the jurors to evaluate whether the woman had consented to sex.

The prosecutor rebutted the arguments made by the defence that there was no sexual harasssment, and argued that the man used sexually charged phrases which he knew his wife did not like.

On the third count of simple possession of cocaine for personal use, Grima said his confession to having consumed it sufficed. In his statement, the accused said that he had consumed cocaine when he was sad.

Grima invited the jurors to analyse whether the alleged victim was consistent in her testimony in the trial and compare it to her testimony before the magisterial inquiry. She also invited them to analyse the evidence brought forward in the case.

In his rejoinder, Micallef Stafrace said the case was built on an incident of being “lost in translation”. He encouraged the jurors to look at the medico-legal experts’ report and testimony, adding that they are “no fools”. The defence lawyer referred to Scerri’s final words, in which he concluded that there were no signs of rape.

He questioned why one would keep a ripped pyjamas as evidence instead of throwing it away, as he cast a doubt on the alleged victim’s testimony.

The defence lawyer questioned how come she could not push him off, and said “look at him and look at her”.

“This is a case built on ‘he says, she says’ one is not in their mind,” Micallef Straface said, adding that one needs to establish what happened, especially in the view of conflicting version of events: one given by the victim in her statement and the accused in his statement.

The case continues on Friday with Madam Justice Consuelo Scerri Herrera set to sum up the prosecution and defence arguments before the jurors retire to their chambers to deliberate.

Lawyers Darlene Grima and Jennifer Polidano prosecuted on behalf of the Attorney General’s Office.

Legal aid lawyers Simon Micallef Stafrace and Julia Micallef Stafrace assisted the accused.