The
accused pleaded not guilty to rape. Nevertheless, after a full trial,
he was convicted as charged. The court sentenced him to twelve years
imprisonment. Two years imprisonment was suspended for five years on
the usual condition of good behaviour. Thus, ten years imprisonment
remained effective.
However,
after scanning the record of proceedings and the judgment of the
court a
quo,
I have failed to appreciate what evidence convinced the trial court,
beyond reasonable doubt, that the accused was guilty of rape.
Plainly, he was guilty of having extra-marital sexual intercourse
with a young person, in contravention of section 70[1][a]
of the Criminal Law [Codification and Reform] Act [Chapter
9:23]
[“the
Code”].
In the circumstances, the effective sentence of ten years
imprisonment becomes so incongruous as to induce a sense of shock.
The
court convicted only on the evidence of the complainant and her
father. Ordinarily there would be nothing wrong with that. If the
evidence was credible, and it was cogent enough to establish rape
beyond any reasonable doubt, the court could legitimately convict.
But, in this case, the complainant was not credible. The father might
have been. But the evidence as a whole was not doubt-proof. There
were several question marks. The accused's own version of events
was not discredited. The trial court was most perfunctory in its
assessment of the evidence and in its judgment. The focus and
emphasis of the judgment was on wrong areas or irrelevant principles.
The
facts were these.
The
accused was twenty years old. The complainant was fifteen. Both
stayed with their parents in the small town of Mashava, but in
different locations; their homes being about two to five kilometres
apart. There was some form of social relationship between the two.
The complainant said they were mere friends. The accused said they
were more than just friends, but lovers. The evidence did not
establish exactly which was which. But, from the surrounding
circumstances, it was more likely they were lovers. Certainly, the
accused was not a stranger to the complainant or her family. He said
he was a barber at a hair salon operated by the complainant's
sister, and, at which the father brought supplies from time to time.
The father said he only knew the accused facially. Neither the
complainant nor the father refuted his claim that he was a barber at
the sister's salon.
There
was much convergence on the evidence of the complainant and that of
the accused on the actual circumstances of the offence. For example,
on the momentous day they met at around 15:00 hours at some shops.
The accused invited the complainant to his house. She agreed. She
came on her own at around 17:00 hours. The accused's parents were
not at home. So were the complainant's.
It
was common cause that the complainant spent the night at the
accused's place. For part of the night they slept together on the
accused's bed. Not only that, but actually in his blankets. The
complainant said it was around 19:00 hours when the accused forced
himself upon her and raped her. He left her after the act. She said
for the rest of the night she slept in the accused's kitchen until
about 05:00 hours the following morning.
The
accused, whilst admitting sleeping on the same bed with the
complainant for part of the night, denied they had had sexual
intercourse. He said they only kissed, snogged and caressed, as
lovers are wont to do. He said at around 22:00 hours he left for some
church prayers with friends. He left the complainant inside the
house. He returned after midnight. He expected to find the
complainant gone. However, she was still there. He slept in the spare
bedroom. The following morning she left for her parents' place.
According
to the complainant, the intrinsic details of the rape were these.
When
she called at the accused's place, he dragged her inside, blew off
the candle and pushed her onto the bed. She fell face upwards. His
one hand covered her mouth. The other pulled down her pant to knee
level. He pulled down his trousers down to knee level also. He
inserted his erect penis into her vagina and had unprotected sexual
intercourse with her. Afterwards he instructed her to go and sleep in
the kitchen.
The
complainant further said she could not run away because the accused
had locked the door. When the accused went out for prayers with
friends the complainant said she could not leave for her parents'
place because it was late in the night. The accused refused to take
her home.
The
complainant's father said on the night in question he had been at
his rural home. He came back two days later. That was when the
complainant reported the rape to him. But he said on the night it
happened someone by the name of Ngonidzaishe, who was at his Mashava
house, telephoned that same evening to report that the complainant
had not come back home. In response, the father had cautioned
Ngonidzaishe against rushing to make a police report. When he came
back, two days later, he questioned the complainant about having
slept out. That was when she reported the rape. Eventually, a report
was made to the police, leading to the arrest of the accused.
The
complainant's father said the complainant could not have reported
the rape to the police earlier because there was a standing
instruction by him that all sensitive issues concerning members of
his household had to be reported to him first.
The
accused was adamant he did not have sexual intercourse with the
complainant as alleged, or at all. He was adamant he was in a love
relationship with her. Although he was aware the complainant was only
fifteen years old and was only in Form Two, he said he was prepared
to wait and marry her later.
The
accused claimed the complainant had once written to him purporting to
terminate their affair but that after talking things over their
relationship had resumed. At one time, during the proceedings, the
court adjourned to let the accused go and collect the complainant's
letters which he claimed he had left at home. But when the sitting
resumed the accused claimed he had failed to find the letters.
The
medical examination of the complainant was carried out within four to
seven days of the alleged offence. It established definite evidence
of penetration. The hymen was no longer intact. It was stretched. It
was torn but had healed. However, it was also recorded on the medical
report that the complainant had had previous sexual experience. In
answer to the prosecutor's cross-examination on this aspect, the
accused said he was surprised that the complainant was not a virgin
when all along he had thought she was.
On
convicting the accused of the rape of the complainant the reasoning
of the court a
quo
was as follows:
(i)
That the complainant had told the court in no uncertain terms that it
was the accused who had raped her and that she had proffered no other
name;
(ii)
That the complainant had reported the rape voluntarily to her father
fairly quickly, i.e. within two days, and that this was in line with
the guidelines in cases such as S
v Banana
2000 [1] ZLR 609 [S];
(iii)
That the accused was a poor witness who had lied to the court about
the letters;
(iv)
That the accused and the complainant were in love but that when the
sexual intercourse had taken place the complainant had not consented.
The
court a
quo
did not caution itself against the danger of false incrimination.
Contrary
to her denial, the court found that the complainant and the accused
were in love. It is not that lovers cannot be raped. Even wives can
be raped. It is not the type of relationship that determines whether
the sex act is rape or not. It is the absence of consent to it by the
female partner.
In
terms of section 65 of the Criminal Law (Codification and Reform) Act
[Chapter 9:23] (the Code) rape is sexual intercourse by a male person
with a female person without her consent. So, even though the
complainant and the accused had been in a love relationship the sex
act on the night in question would be rape if she said no to it. But
circumstantial evidence suggests she said yes. And this is what the
court a
quo
did not explore.
The
significance of the love relationship between the accused and the
complainant, which she unwisely continued to deny, is on the question
of credibility. This should have been considered with the rest of all
the other surrounding circumstances. The complainant was not forced
to come to the accused's house. The accused invited her. She
readily agreed. That was at the shops. She first went home. Her
parents were away. Thus, the coast was clear for a night out. She
voluntarily went to her lover, the accused. Although she claimed the
accused was her friend, her actions in this regard are explainable
more by a love relationship.
At
her lover's house, the coast was also clear. Only the accused was
home. Apart from her say so, the evidence does not establish that
there was any form of resistance by the complainant before the sexual
act. It is true that resistance is not a requirement to negative
consent. If a woman says no to the sexual intercourse, that should be
enough. It should not matter that the man is her lover. But, in this
case, the surrounding circumstances do not suggest that the
complainant said no. Among other things, the accused went out of the
house leaving her alone. She did not walk out of the house to go back
home or to report to the accused's neighbours. She said she was
waiting for the accused to come back and accompany her home. As the
accused aptly asked her in cross-examination: “Why
would you want to be accompanied by a rapist?”
It
all goes to credibility. But that is not all.
The
complainant claimed she bled during the alleged attack. She said the
blood spilt onto her legs. None spilt onto the blankets or the bed.
She claimed it was her first sexual act. But, the medical evidence
showed she had had previous sexual experience. That was a huge dent
on her credibility.
Objectively,
the court a
quo
should not have been readily impressed by the complainant's report
of the alleged rape to her father two days later. Her absence from
home on the night in question had been noticed. Not only that, it had
been reported. The evidence does not say who Ngonidzaishe was. It
does not say what sort of relationship existed between him or her and
the complainant. This might have enabled an assessment to be made
whether or not he or she was the kind of person in whom the
complainant could reasonably be expected to have confided with such a
sensitive issue as rape, even despite the father's standing
instruction. The point is, the complainant had to come up with some
plausible explanation to her father on why she slept out on the night
in question. It would not be plausible to confess consensual
intercourse with the accused, her boyfriend, when she was only
fifteen years old, and still in school. She therefore cried rape.
Nothing said by her, or the father, refuted this version by the
accused.
The
court a
quo
did not even consider the alternative verdict of contravening section
70[1][a]
of the Criminal Law (Codification and Reform) Act (the Code). This is
rather strange. The clear tenor of the prosecutor's
examination-in-chief of the complainant, and of his cross-examination
of the accused, was manifestly towards proving this alternative
verdict.
Thus,
in this case, rape was not proved. The conviction and sentence are
hereby set aside.
However,
the evidence established the permissible verdict of contravening
section 70[1][a]
of the Code, namely, having extra marital sexual intercourse with a
young person. Therefore, the accused is hereby found guilty of having
extra-marital intercourse with a young person in contravention of
section 70[1][a]
of the Criminal Law (Codification and Reform) Act [Chapter 9:23]….,.
The
court a
quo
is hereby directed to recall the accused to pronounce to him the
altered verdict…,.
