Danny Steven Kay’s rape conviction in Derby, England was quashed on December 21, 2017 by an appeals court based on the discovery of Facebook messages sent by his accuser that showed their sexual encounter was consensual.
On July 28, 2012 a 16-year-old female reported to the Derby police — at the urging of her mother and grandmother — that 20-year-old Danny Kay had raped her in early February 2012. Sixteen is the age of sexual consent in England. The young woman was publicly identified as “A” because of the U.K.’s law barring the disclosure of an alleged sexual assault victim’s name.
Kay was arrested. During his police interrogation he said he had seen “A” on two occasions. He admitted that during their second meeting they had consensual sex.
Kay was charged with one count of rape.
During Kay’s jury trial “A” testified they became acquainted on Facebook. After exchanging phone numbers they met in person in February 2012. She said that during their first meeting they sat in Kay’s car and talked. The second time they met was at Kay’s home. While watching television on the sofa in the living room he had sexual intercourse with her after she told him to stop.
She had provided the police with three pages of Facebook messages that she printed out. The messages showed their arrangements to meet and so forth. There was nothing beneficial to Kay in those messages. Phone records showed “A” sent Kay 429 text messages between February 1 and March 13, 2012. However, “A” had deleted all the messages and they couldn’t be retrieved.
On cross-examination “A” acknowledged that she had deleted some of the Facebook messages with Kay, but said she did so to free up storage space. She denied sending naked pictures to Kay, although she admitted she had taken nude pictures of herself in the mirror. She admitted to having multiple sexual partners before she met Kay, and that she lied to the police she was a virgin. She also admitted that after the alleged rape by Kay she had obtained an emergency contraceptive in late March 2012 after having unprotected sex with another man. She further admitted she and her family were Jehovah Witnesses and sex before marriage was not permitted.
Evidence was introduced that “A” had visited a medical clinic on Feb. 9 and Feb. 24, 2012, but neither visit was sexual in nature. She did not tell anyone she had been raped by Kay until July 2012 — and during those five months she had sex with a number of other men.
Kay’s defense was he had consensual sex with “A” once, and they didn’t see each other after that. Kay knew the three pages of messages “A” provided were incomplete, but he was unable to find the messages in his Facebook account, and he contacted Facebook for the missing messages, to no avail.
Faced with a “She said, He said” case, the jury sided by a 10 to 2 majority with Kay’s accuser and found him guilty on September 23, 2013.
Kay was sentenced on November 11, 2013 to 4-1/2 years in prison.
The breakthrough in Kay’s case occurred on May 9, 2014. Sarah Maddison, Kay’s sister-in-law, was able to recover all the Facebook messages “A” had sent him. Maddison found the messages in an archived folder in Kay’s Facebook account. She took screenshots of the messages that showed Kay’s accuser had selectively deleted messages from her Facebook account, and provided the police with only the messages that didn’t show she and Kay had consensual sex. The complete set of Facebook messages showed that no crime had occurred. Maddison provided a statement to Kay’s lawyer about what she had discovered.
On March 23, 2016 Kay filed an application for leave to file an appeal — almost 2-1/2 years after the filing deadline.
Then on September 16, 2016 — two years and four months after Maddison provided a statement — Kay’s lawyer finally checked and personally verified that “A” had only provided the police with the Facebook messages that didn’t show the sex was consensual. Kay’s lawyer printed out all of “A’s” messages to Kay, and incorporated them into his appeal. The exculpatory Facebook messages were the basis of the second ground of Kay’s appeal: “2) Fresh evidence in the form of Facebook messages are now available that go directly to A’s credibility. Edited and misleading copies of the Facebook messages were adduced at trial.”
On December 21, 2017 the England and Wales Court of Appeal (Criminal Division) granted Kay’s application to file his appeal out of time based in the interests of justice. The Court also unanimously quashed Kay’s conviction based on the new message evidence that undercut both the credibility of his accuser’s testimony, and the reliability of the edited Facebook messaging evidence presented to the jury. The Court stated in it’s written ruling in Kay v. Regina,  EWCA Crim 2214:
“We have come to the conclusion that, in a case of one word against another, the full Facebook message exchange provides very cogent evidence both in relation to the truthfulness and reliability of A, who, in any event, gave a series of contradictory accounts about other relevant matters, and the reliability of the applicant’s account and his truthfulness. … We are satisfied that this further evidence does raise a reasonable doubt as to whether the applicant would have been convicted had it been before the jury, thus rendering the conviction unsafe. We also consider that there is, in the unusual circumstances of this case, a reasonable explanation for the failure to adduce the evidence at the trial.”
No retrial was ordered.
Kay had been released on parole in early 2016 after serving more than two years in prison. The Court’s ruling terminated his parole.
“A” could be criminally charged with perverting the course of justice for deliberately destroying the Facebook messages proving Kay had committed no crime, and for her extensive perjury during Kay’s trial.
Click here to read the appeal court’s ruling in Danny Steven Kay v. Regina,  EWCA Crim 2214.