A man has failed to prevent his sister bringing a civil action for damages over his alleged rape and sexual assault of her when she was between 11 and 13 years old.
The woman alleges that assaults of her on some 120 occasions by her older brother more than 40 years ago stopped after her mother caught him abusing her in her bed.
He was put out of their home for a time but, after her father pleaded for his return, he was allowed back and her mother would lock her into her bedroom when her brother was in the house, she claims.
The woman also claimed she was sexually abused by two other men, one of whom has died.
RM Block
After gardaí investigating complaints made by another person against the third man approached the woman, she made a formal complaint against that man in 2019 and he has been convicted.
As a result of the alleged sexual abuse of her, the woman said she had started to abuse alcohol and other substances and her mental health deteriorated.
In 2023, she initiated civil proceedings seeking damages for assault, including sexual assault, against her brother.
In a pretrial application to the High Court, the man, who denies assaulting his sister, asked the court to strike out the case.
He claimed delay of more than 40 years between the alleged assaults and the initiation of the civil action created a real risk of an unfair trial. Their parents and other family members who were potentially important witnesses had died and he did not have access to work and other records, he said.
On behalf of the woman, it was argued there was no culpable delay. A consultant psychiatrist reported he was satisfied that, due to trauma as a result of sexual assaults suffered, she was impaired in her ability to make any formal complaint until 2019.
In his recently published judgment, the High Court’s Mr Justice Anthony Barr noted the woman’s side relied on a Court of Appeal decision earlier this year which appeared to mark “a radical addition” to the principles applicable to cases such as this.
Based on that decision, he said the present law appears to be that when a plaintiff can provide medical evidence that alleged sexual abuse impaired them formally complaining until a particular date, the period between the date of the alleged abuse and the first formal reporting of it will not be reckonable in any application to prevent a trial on lapse-of-time grounds.
Because the woman alleged she was seriously sexually assaulted by three separate individuals in close temporal proximity, he could not find such impairment that she was under in making her complaint against her brother was due to his alleged wrongdoing alone.
He therefore did not find her brother was responsible for the delay in instituting these proceedings. Equally, as there was medical evidence of impairment on her part, nor was there any culpable delay by her in instituting her proceedings.
Having found the delay was not the fault of either side, he considered whether it created a real risk of an unfair trial.
In his view, the loss of evidence which might have been given by deceased family members did not seriously prejudice the man’s defence. Another family member was available to give evidence which could potentially be “critical” and the man may seek discovery of his sister’s medical records, including her counselling records, he said.
Having concluded the man had not shown he could not get a fair hearing at the trial of the action, he dismissed his application to strike it out.
