A court on Monday ordered the Attorney General to re-evaluate the decision not to prosecute a man accused of raping a vulnerable 22-year-old woman in April 2022.

The man used to work as a care worker at Mount Carmel Hospital, where the woman had been a patient.

Judge Mark Simiana ruled that the decision to drop the case was "unreasonable" because it was based on a flawed interpretation of legal consent. He insisted that silence is not consent.

He was ruling in a case instituted by the victim, Emma Agius, who was challenging the Attorney General's refusal in November 2024 refusal to take criminal action against the care worker.

Agius, who suffers from Borderline Personality Disorder, first met the man while she was receiving treatment at Mount Carmel Hospital, where he worked as a care worker.

After she was discharged, the man sent her a friend request on Facebook.

Shortly before the incident, Agius told the man she was going through what she described as a "tough period" following a relapse in her mental health.

The man however insisted on visiting her at home on the evening of 7 April 2022, saying he wanted to help clean her wounds.

Agius later testified that she was unwell and wanted to be left alone, but eventually went to bed while the man remained in the apartment. She told investigators she pretended to be asleep in the hopes he would leave.

In her first statement to police, Agius said she woke up after midnight and felt him touching her breasts. "I feigned sleep. He pulled up my shirt and continued touching me and put his hand under my underwear," she told investigators.

Agius described herself as remaining passive throughout the incident. While she was pretending to be asleep, the careworker allegedly told her "to close her eyes and continue sleeping" while he continued with the sexual act.

Agius said she began trembling during the incident and recalled the man telling her to calm down and breathe deeply.

Afterwards, she testified, he went into the kitchen, ate some bread, smoked a cigarette and left the apartment.

The alleged rape was reported to police at the Qawra station at 3:50am on 8 April, immediately after the incident.

A court-appointed psychiatric expert later concluded that while Agius was "capable of consenting," she had "clearly" not done so in this case.

The expert also identified what he described as an abuse of power linked to the relationship between a care worker and a vulnerable patient experiencing emotional distress.

Despite this, the Attorney General decided not to prosecute, arguing that the care worker had never been told, nor shown, that there was no consent.

Silence, lack of resistance do not imply consent - Judge

However, Judge Simiana sharply criticised that reasoning. He stressed that under Maltese law silence or a lack of resistance cannot be interpreted as agreement.

"Silence, a lack of resistance, or the failure to say 'no' do not imply consent," the judgement states.

The court said consent must be active, conscious and voluntary. It added that responsibility lies with the person initiating sexual activity to ensure consent exists.

It also rejected the argument that a victim must physically resist or verbally object for a rape to occur.

In its judgment, the court described the Attorney General's decision as unreasonable and said that "no reasonable prosecutor should have reached that conclusion" based on the evidence gathered during the inquiry.

The judgment also referred to the impact the case had on Agius's mental health.

The court heard that she was hospitalised at Mount Carmel Hospital four more times following the alleged assault and suffered from PTSD, depression and anxiety linked both to the incident and to the delay in criminal proceedings.

The court ultimately declared the Attorney General's decision "null, invalid and without effect" and ordered the case to be reconsidered in line with the judgment.

In his final considerations, Judge Simiana made it clear that the court's role was not to determine the guilt or innocence of the care worker, nor to definitively state whether a rape had occurred.

"It is not the task of this court to say that there should be a prosecution of any person," the judge noted, adding that his court cannot interfere with the constitutional independence of the Attorney General's office.

The court ordered the Attorney General to reconsider the case.