The Sunday Mail
Tichawana Nyahuma Legal Matters —
Women were created to be loved and respected and not to be abused. It is, therefore, worrying and disgusting that rape is one of the most prevalent serious crimes in Zimbabwe.
The consequences of rape are devastating and traumatic for the victim.
She can fall pregnant, contract HIV or even be killed after the act. You can imagine a rape victim carrying the resultant pregnancy to full-term and then having the child for her entire life.
It becomes even worse if the child is born with features that strikingly resemble those of the rapist father. If she is married, is her husband to believe that it was rape? Even if he were to do so, is he going to live with her till death do them part or will that signal the end of the marriage?
Where she is not as yet married, how is she to deal with that situation upon being approached by a man proposing to marry her?
There is, therefore, no doubt that rape is a gruesome crime which the legislature saw fit to prescribe a maximum punishment of life imprisonment or any shorter period upon conviction.
In my view, rape is such an egregious crime that a death sentence for a person convicted of the crime would be a lenient punishment.
What is rape?
Rape can be broadly divided into two categories. One involves persons who are both adults. The other consists of where both or one of the persons is a minor.
The law uses different spectacles to look at the two classes.
The crimes of sodomy, indecent and aggravated indecent assault are closely related to rape but these are for discussion on another day.
With respect to the two categories of rape I have mentioned, I propose to tackle both of them in this discussion but may I digress before returning to dig deeply into the matter.
The common thread that runs through all crimes is the mental element, better referred to as the intention to commit the offence.
“Intention” means either the presence or absence of deliberateness to commit the crime.
Accordingly, murder cannot be said to have been committed if the accused person is able to show that when he or she acted or omitted to act in the manner that caused the death in question, he or she did not possess the requisite intention to do so.
Consequently, the absence of intention in the mind of the accused means that he/she cannot be guilty of murder but may be guilty of the lesser offence of culpable homicide, which is the negligent causing of death.
A person is not guilty of crimes such as fraud, theft, assault and the like unless there was intention to commit the crimes.
With respect to rape, a few questions deserve answers. First, what is rape and how is it committed? Can a husband rape his own wife? Can a woman commit rape?
In terms of the Criminal Law (Codification & Reform) Act, the Code, rape is committed by a male if he knowingly engages in sexual or anal intercourse with a female person without her consent.
The law is framed in such a way that the offence cannot be perpetrated by a female although a female can be guilty of this crime as an accomplice if she assists a male commit rape.
A husband can be guilty of raping his wife but he will not be brought to trial unless the Prosecutor-General authorises prosecution.
Although cases of this nature are believed to be rampant, it is difficult for wives to report as reporting the offence tends to stigmatise her within the family and society at large.
Furthermore, in the great majority of the cases, husbands are the breadwinners and, therefore, a raped wife might not report the offence fearing that if her rapist husband is jailed, the family will fall on hard times.
In the end, many victims of marital rape suffer silently. The word “knowingly” is a key component of the law of rape.
It is intended to deal with the mental element that I have discussed above because logically, a man cannot claim to have unknowingly had sexual intercourse with a woman.
The words “without her consent” are the soul and spirit of the offence. Once it is proved that intercourse took place, the next question to answer is whether she consented to it. If the court is convinced that she did not consent, the accused will be convicted.
If the court takes the view that the sexual act was by agreement, he will be acquitted.
Because it is all too easy for a woman who has had consensual sexual intercourse with a man to claim she has been raped, the position in the past used to be that apart from her mere say so, there was need for the woman’s story to be supported or corroborated by other independent evidence.
The woman victim on her own was seen by courts as not being credible. Happily, our courts have moved away from that position on the basis that the old order was unnecessarily burdensome on women as it seemed to protect alleged rapists rather than victims.
The position now is that a person charged with rape can be convicted on the sole evidence of the victim as long as the story is believable when compared to that of the accused.
Cases of women who engage in consensual intercourse and then later turn around and claim they were raped are, however, still widespread.
This occurs when the lovebirds develop misunderstandings after the act whereupon the woman proceeds to make a false rape report.
What such women do not know is that upon the evidence being tested in a court of law through cross questioning, the lies will be exposed.
Accordingly, womenfolk who have issues with their lovers are implored to refrain from using sexual intercourse as a weapon because it is them (the women) who will end up with egg on their faces when the case is brought to court.
In cases involving prostitution, a prostitute cannot claim her client have raped her when he fails to pay for the services. That is a mere breach of contract of which her remedy lies in the civil court as opposed to a criminal court.
Misconceptions
That said, there are misconceptions associated with rape.
It is generally believed that a rape only occurs where brute force is used. The woman is expected to resist the attack and has to show actual injuries to prove she fought back.
It is also believed that a man cannot rape his girlfriend or his wife. Some say women must not be guilty of “provocative behaviour” such as wearing a mini skirt, or that a prostitute cannot be raped.
I am emboldened in these assertions by the words of Justice Tsanga in the State v Musumhiri (HH404/14) where she remarked that: “. . . society has so relentlessly crafted in terms of the expected behaviour of its ideal rape victim. She must scream – very loudly. She must show evidence of physical resistance. She must be battered and bruised if she is a genuine victim. If she knows her assailant she instantly loses credibility and the understanding is that she was not raped.”
These are all fallacies. As long as it is shown that a woman had not agreed to the sexual act, it is rape. It does not matter that she is a whore, a wife, a girlfriend or that she acted provocatively by donning a see-through dress and so on.
It occurs quite frequently that victims of rape do not report soon after the crime to the police or any person they would comfortably be expected to make the report to.
Should it be taken that by failing to make the report at all or by reporting after the passage of an inordinate amount of time, then that is an indication that the rape story is fabricated?
The legal position is that late reporting does not cause the offence to expire for as long as the delay is not by more than 20 years.
It must always be borne in mind that by its very nature, a rape case is not easy to report. It is unlike reporting a case of fraud or of stock theft. There are so many other issues that come into play when rape occurs.
First, the victim may be afraid that she will be disbelieved particularly where she and the perpetrator are known to each other such as where she is her fiancé.
Second, fear of the consequences where she ends up being blamed for the incident. Sometimes she may be thrown out of the home or be forced to marry the rapist.
Third, there is always that stigma that is attached to her and, therefore, she may want to “preserve” her own image/dignity.
Fourth, although the Zimbabwe Republic Police now has specially trained personnel that handle and assist victims of sexual offences, this fact seems to be largely unknown to most members of the public such that a rape victim might be scared to report, thinking she might be dealt with insensitively.
Besides, most members of the public seem to believe that police reports are always received by male police officers. The victim of rape being a woman, therefore, cannot fathom making such a report to a male police officer.
Fifth, in the event that the rapist is eventually brought to trial, the accused’s lawyer might savage and treat her without any empathy while testifying.
Sixth, if the matter is picked up by the Press, then the whole world will know. The reasons are without end.
Adult rape
0I now focus attention on rape that involves adults, and in that respect, the type of rape that is easy to prove is that of a male person who happens upon a female person, typically a total stranger to him, in a bushy area or some other secluded place and forcefully has sexual intercourse with her.
In such a case, there will be no doubt whatsoever that the offence would have been committed because she clearly would not have consented.
But in those cases where the persons involved know each other, there might be difficulties in proving that the woman did not give her consent.
But how is she to give the consent? If she is not interested, she can decline by her words or her actions. The court will look at all the surrounding circumstances before coming to a conclusion as to whether or not there was consent.
An illustration maybe helpful. One Saturday afternoon Joyful, a 19-year-old girl visits her boyfriend, Fuljoy, who is 23, at his one-bedroomed flat at Emakhandeni in Bulawayo.
Upon arrival, she discovers that he is not home but the main entrance door is not locked and so she enters and immediately removes all her clothes and jumps into the shower.
While she is still there, Fuljoy returns to be surprised that his “angel”, for that is what he used to call her, and much to his glee, is home and naked in his bathroom.
Fuljoy does not attempt to intrude into the bathroom and talks to her while he is lying on his bed with all his clothes on. Within a few minutes, however, Joyful emerges from the bathroom wearing only a smile and throws herself on Fuljoy.
Before long, one thing leads to another until sexual contact occurs but all the while, Joyful is remonstrating: “No darling, it must only happen after you marry me.”
One month later, Joyful discovers she is pregnant and makes a police report that Fuljoy had raped her because she had not consented to the intercourse.
The police arrest Fuljoy and he is hauled before the court to answer to charges of rape. The question that the trial court will have to grapple with in such a scenario is whether by uttering the word “no” several times during the act, Joyful had not in fact meant “yes”?
In all probability, Fuljoy in his defence to the charge, will be arguing that Joyful had, by her conduct before and during the time he ravished her, consented to the act and that, therefore, he is not guilty of the crime.
After all, so Fuljoy’s argument will continue, actions speak louder than words. In terms of the Code, consent by a victim of an offence who is legally capable of giving it is a full defence to the charge except in certain specified offences.
In the present case, Joyful’s “no” will have to be weighed on the scales of justice against her other conduct such as emerging from the shower with no clothes on, her jumping on top of him in that state and so on.
In the final analysis, Fuljoy is likely to be found not guilty and acquitted of rape.
To be continued
Tichawana Nyahuma is a researcher and a lawyer who writes in his personal capacity. Feedback: [email protected].
