A rapist who was convicted after his victim secretly recorded his confession during a meeting at a cafe has been jailed. David Smyth, 36, admitted over coffee that he had sex with the woman while she was asleep after a night out with friends.
Smyth, an IT operative and former charity worker, was found guilty by a jury on Thursday of raping the woman at a house in Falkirk, Stirlingshire, on an occasion in 2019. His victim, a former masters student whose subjects included Scots law and crime, secured the evidence that helped convict him by inviting him to the cafe and initiating a “friendly” conversation. She held her phone beneath the table and recorded his words.
Victim's Evidence and the Recording
At the High Court in Stirling, the woman, now also 36, said that during their relationship she had woken up in the morning with a feeling that she'd had sex without being aware of it. She decided to confront him after reading a report titled “The Sexual Assault of Sleeping Women.”
On the recording, which was played to the jury, she asked him why he'd had sex with her while she was asleep after the night out. Smyth replied: “Because I wanted to have sex. I liked having sex. I liked being in control. You weren't saying no.” She replied, “I couldn't say no.” He replied, “No, you couldn't say no, not in the state you were in.” He added: “I think in a way it was to feel powerful.”
The court heard she'd had a number of conversations with Smyth about him having sex with her when she wasn't aware it was happening. He told her he'd had sex with her when she was asleep “seven or eight times”. She said: “It was he who said 'rape'. He said, 'I'm sorry I raped you'. I remember gasping.”
Impact and Defence
Giving evidence from behind a screen, she said she had been left horrified, terrified and scared. She said: “I have nightmares about it.” She added that consensual sex between them had happened only “once in a blue moon”. After the 2019 night out, she'd woken up to find herself lying on her front and Smyth raping her. She said: “I felt like I couldn't move. I was completely in shock. I couldn't believe that was happening.”
She said she had not confronted him at the time, but did so after their relationship ended. Smyth then admitted he'd had sex with her when she'd been “not conscious”. The court heard he said to her, “If you ever want me to go to the police to say what I've done, I'd do that – I'll admit what I have done.” He went on to message her: “I wish I could go back and stop it from happening. I regret it every day. I did it, so I should feel bad.”
In court, however, Smyth, of Brightons, Falkirk, denied rape, and said that all sexual intercourse they'd had was consensual. He told the jury: “I thought back to my time with her and I came to the conclusion that I had not raped her.” He claimed he had made his admissions to “appease” or “placate” her. Prosecutor Carrie Stevens said his evidence was ridiculous. But advocate Jonathan Crowe, defending, said the woman had “lured” him to the cafe and asked him a series of leading questions.
Verdict and Sentencing
Smyth snivelled and wept in the dock as the jury's verdict was announced, and turned to mouth “I'm sorry” to supporters on the public benches. Judge Lord Young deferred sentence until November 19th at the High Court in Edinburgh. Revoking bail and remanding Smyth in custody, he told guards, “Take him downstairs.” As Smyth's family members left the courtroom, a woman shouted to jurors, “You got it wrong.”
