AN ATTEMPT by a medical doctor facing a rape charge to have parts of the Combating of Rape Act declared unconstitutional has failed in the Windhoek High Court.
In a judgement delivered on Tuesday, three judges of the court dismissed an application in which Cuban medical doctor Pedro Luis Viera asked the court to declare two parts of the Combating of Rape Act as unconstitutional.
The court reasoned, in a decision written by judge Claudia Claasen, that Viera has been informed of the particulars of two counts of rape that are pending against him in the Windhoek Regional Court, and that with that information he would be able to properly prepare for his trial and present his defence to the charges.
Viera is accused of having raped a fellow medical doctor in Windhoek in December 2018.
He wanted the High Court to declare that five words in the rape law’s section 2(2), which sets out what is considered as coercive circumstances under which a sexual act would constitute the crime of rape, are unconstitutional and invalid.
The section says that the concept “coercive circumstances” includes, but is not limited to, a list of situations set out in the act. The list in the act includes the use of force or threats to use force against a complainant in a rape case or someone else, the unlawful detention of a complainant, and circumstances where a complainant is under the age of 14 and an alleged perpetrator is more than three years older than the complainant.
The words which Viera wanted struck from the law are “but is not limited to”, which leave the list of coercive circumstances stipulated in the act open-ended.
Viera claimed the words “but is not limited to” expand the stated list of coercive circumstances to situations which are undefined and subject to the whim of anyone, and give the courts unrestricted latitude to define any circumstances as sufficient to justify a conviction on a rape charge.
He also argued that the words he complained about were overbroad and vague and violate his right to adequately prepare for his trial.
Claasen noted in her judgement that the state has disclosed to Viera that it is alleged the coercive circumstances under which he raped the complainant in his case were the application of force and threats and the detention of the complainant in her room. With that information, Claasen said, Viera is in a position to properly prepare for his trial and to present his defence.
Once the meaning and context of words in a rape charge are considered, it would become intelligible, and under such circumstances it is questionable that an accused can claim to be in the dark about the unlawful conduct they are accused of or that they would not know what is expected of them as law-abiding citizens, the judge said.
Claasen recorded that before the Combating of Rape Act became law in 2000, the offence of rape was defined as the intentional and unlawful intercourse by a man with a woman without the woman’s consent.
She stated that what the previous law on rape in effect did, “was to put the complainant ‘on trial’ as the state then had to prove beyond a reasonable doubt that the complainant did not consent to the sexual act”.
The Combating of Rape Act contains a broader and gender-neutral definition of rape, covering a range of sexual acts committed under coercive circumstances, Claasen noted.
The act “also relies on proof of coercion rather than absence of consent which represents an enormous paradigm shift from the approach which often made the rape survivor feel as if she was the one on trial”, she added.
By leaving the definition of “coercive circumstances” open-ended, the act was designed to be broad and to cover a wide extent of circumstances, Claasen said: “It serves a legitimate purpose of dealing with grave societal mischiefs, namely the scourge of rape cases and perpetrators that evade punishment under the cloak of the law. The position of rape under the common law definition was clearly unsustainable in our constitutional democracy founded on the rule of law and justice for all.”
Judges Naomi Shivute and Herman January agreed with Claasen’s judgement.
Viera was represented by Thabang Phatela, instructed by Kadhila Amoomo.
Nixon Marcus represented the prosecutor general in the matter.
