The accused took a concoction of herbs with the intent to procure an abortion when she was six months pregnant and buried the fetus. She pled guilty to contravening the Termination of Pregnancy Act, which bans abortions subject to enumerated exceptions. She was sentenced to nine months imprisonment that were suspended on the condition that she complete 305 hours of community service. The issue under review was whether the conviction was proper without medical evidence to prove that the ingested herbal concoction could induce an abortion. It was held that before a person is convicted for abortion it must be proved that the instrument or method used can induce an abortion. Except for a few obvious cases were the conduct of the accused is known to cause abortions, medical evidence must prove that the terminated pregnancy was not spontaneous but induced by the actions of the accused. Here, there was no proof that the herbal concoction was, in fact, capable of inducing an abortion. Therefore a conviction for abortion was an error, accused was guilty solely of attempting abortion.
Women and Justice: Court: High Court of Zimbabwe
The 47-year-old male applicant requested bail pending the appeal of his conviction and 15-year sentence for raping the 16-year-old complainant. The applicant appealed, arguing that the intercourse was consensual because the victim did not scream or immediately report the rape after a witness stumbled upon the incident. The applicant had to show, among other things, the likelihood of success of his appeal to obtain bail. The court dismissed the bail application after rejecting the state's concession that the applicant had a meritorious appeal because complainant's failure to scream or to immediately report the rape cast doubts upon her lack of consent. Citing research about cultural inhibitions on gender violence victims, the court concluded that silence could not be equated to acquiescence. With women often held culturally as custodians of appropriate sexual conduct, and with the responsibility for sexual restraint being placed on a woman, regardless of her age or power imbalances, the court found it understandable that the complainant failed to make an immediate report. The court noted that a young girl may not make a voluntary report because her cultural context makes it difficult for her to do so without being re-victimized. Consequently, the proposition that the victim's initial silence implied consent was untenable and could not be ground for bail.
This was a dispute involving property in the name of the plaintiff and occupied by the defendant. The plaintiff sought an order for the eviction of the defendant, claiming that he had lawfully acquired the property. The defendant claimed that she was the rightful owner as the surviving spouse of the previous owner of the property through an unregistered customary law union. The court held that defendant had no right to the property as there was no concrete evidence supporting the existence of her customary marriage. The court explained that although the absence of a formal marriage certificate is not fatal to the recognition of a customary law union in matters of inheritance and constitutional protections for surviving spouses and children, the union must be proven to exist. Payment of a roora/lobola, or bride price, remains the most cogent and valid proof of a customary union/marriage, particularly where it has not been formally registered because the ceremony itself involves representatives from both families and others who could attest to the process having taken place. Furthermore, there is often documentary evidence of what had been paid and what remained to be paid. Here, the court held for the plaintiff because there was no evidence of a roora/lobola payment and the defendant could not prove her customary marriage to the deceased.
The appellant was convicted of two counts of rape for allegedly raping the complainant, a 12 year old female, on two separate occasions. He was sentenced to a total of 20 years imprisonment, with half suspended for five years on condition of good behavior. The trial judge and court both found the complainant credible. The court found that the conviction of rape on count two should stand due to circumstantial evidence, which indicated penetration; however, not on count one, which included all of the essential elements of attempted rape, but insufficient proof of penetration so as to constitute rape. The conviction on (i) count one was quashed and reduced to one of attempted rape and (ii) count two was confirmed. The sentences imposed by the trial court were set aside and substituted with seven years of imprisonment on count one and 10 years of imprisonment on count two. Of the total 17 years imprisonment, eight years was suspended for four years on condition that the appellant in that period does not commit any offence involving rape or an offence of a sexual nature and for which he is convicted and sentenced to imprisonment without the option of a fine.
The accused was convicted of two counts, rape and robbery, as he allegedly raped the complainant and threatened to kill her if she told anyone. The two counts were taken as one for the purpose of imposing a sentence of 20 years imprisonment. He received an effective prison term of 17 years. The court noted that the conviction of rape was not at issue; instead, it was the conviction of robbery and the trial judge’s sentencing approach at issue. The court was not convinced that the essential elements of robbery were established regarding the accused’s taking of a cellphone and his subsequent actions, as the circumstances under which the cellphone was surrendered were not clear. Therefore, the facts supported a conviction of theft, not robbery. The court found that the trial judge should not have treated both counts as one for the purpose of sentencing. The court confirmed the conviction of rape, with a sentence of 12 years imprisonment with labor. The robbery conviction was set aside, and substituted for theft of a cellphone, with a sentence of six months imprisonment with labor.
The appellant was convicted of one count of rape for allegedly raping a 3 year old child who had been left in his care, and infecting her with syphilis, a sexually transmitted infection. He was sentenced to 18 years imprisonment, with three years suspended for five years on condition of good behavior. The appellant appealed against the sentence. The court emphasized that courts are required to consider numerous factors, and have wide discretion, in sentencing. The trial court noted that the appellant’s case was aggravated because he was “in a protective relationship with complainant”, who was a very young child. The court agreed with the trial judge’s sentencing approach, noting that the appellant was extremely lucky that he did not get a harsher sentence. The court reasoned that an appeals court will only interfere with the trial court’s sentencing discretion where there is misdirection or a manifestly excessive sentence. As this had not been shown and as the relevant statute prescribes a higher sentence than the one imposed, the appeal was without merit and was dismissed.
The accused was convicted of three counts of contravening s 65 of the Criminal Law (Codification and Reform) Act Cap 9:23, for allegedly raping the complainant, aged 12 years, on three different occasions. He was sentenced to five years imprisonment, with three years suspended on condition of good behavior and the remaining two years suspended on condition he performed 840 hours of community service. The court found that case law clearly demonstrated that rape can only be committed when there is penetration. Evidence of the slightest penetration is sufficient. As the accused failed to penetrate the complainant on the first and third occasions, the court found that he should not have been convicted of rape on counts one and three, but only attempted rape. The court overturned the convictions for rape on counts one and three, which were substituted for attempted rape. The court upheld the imposed sentence, but it reduced the community service sentence to 630 hours.
The appellant was found guilty of allegedly raping the complainant, aged 5 years and 11 months. He was sentenced to 10 years imprisonment, with two years suspended on condition of good behaviour. He appealed against both the conviction and the sentence. The questions at issue were (a) whether the crime of rape was committed and (b) whether the complainant’s evidence was corroborated. The court highlighted that much of the complainant’s evidence was supported by the appellant’s wife. The trial court concluded that there was legal penetration. The court found, however, that mere contact without any slightest penetration does not amount to legal penetration. The court found that the appellant could not be guilty of rape, but only attempted rape. The conviction of rape was reduced to attempted rape. The court pointed out that the trial court erred on the side of leniency in sentencing. The court found that the sentence was still appropriate and did not interfere with it.
The appellant, a Catholic priest, was convicted of two counts of rape as defined in section 65(1) of the Criminal Law [Codification and Reform] Act (Chapter 9:23), for allegedly raping the complainant, aged 23 years. He was sentenced to ten years imprisonment, with two years suspended on condition of good behavior. The appellant appealed his conviction. The evidence showed speculation about a possible love relationship between the parties. The court noted that the complainant wrote a letter to the appellant, which was not properly addressed during the trial. The court found that the letter should have been carefully addressed at trial. The court held that the trial judge should not have convicted the appellant. The conviction was quashed and the sentence was set aside.
The appellant was convicted of one count of rape for allegedly raping the complainant, a 16 year old female. The State argued that the appellant coerced and subdued the complainant into having sex with him without her consent. The appellant claimed that the sexual intercourse was consensual. He was sentenced to a term of eight years imprisonment, with two years suspended on condition of good behavior. The appellant appealed against the conviction. The court indicated that the nature and circumstances of the sexual encounter were in dispute, finding that it was clear from the complainant’s testimony that she was and continued to be in love with the appellant. The court further found that the State’s evidence did not counter the possibility that consensual sexual intercourse took place between the parties. The court held that the State failed to establish the appellant’s guilt beyond a reasonable doubt at his trial. Accordingly, the appeal was allowed. The conviction was quashed and the sentence was set aside.
The appellant was convicted of two counts of rape for allegedly raping two girls, aged 4 and 8 years, respectively. He was sentenced to 10 years on each count, with five years suspended for five years on condition of good behavior. The appellant appealed against the convictions and the sentences. It was accepted that the two girls were sexually interfered with, which both confirmed through testimony. Both girls were (i) examined by a doctor, who observed attenuation of the hymen and a deep notch on both girls and (ii) able to identify the appellant as the perpetrator to the police. The court was satisfied with the identification, finding that the appellant was correctly convicted. The appellant argued that the sentence was too harsh. The court found that numerous factors were considered before sentencing. It held that the appellant did not use gratuitous violence, and was entitled to some leniency. The court ruled that the sentence imposed was unduly harsh and induced a sense of shock. The sentence was overturned and substituted for 10 years imprisonment, with two years suspended for five years on condition the appellant does not within this period commit any offence of a sexual nature for which he is sentenced to imprisonment without the option of a fine.
The appellant was convicted of raping the complainant ten years before she reported it to anyone and eleven years before she reported it to the police. He was sentenced to three and half years of imprisonment, with two years suspended on condition of good behavior. Although the trial judge found the complainant credible, the court found that she was not consistent in her evidence. It emphasized the trail court’s finding that she was suffering from post- traumatic stress disorder and her delay in reporting. As there was no independent evidence beyond the complainant’s testimony, the court could not hold that (i) the danger of false or erroneous implication was excluded beyond reasonable doubt or (ii) the state proved its case beyond reasonable doubt. Thus, the conviction was quashed and the sentence was set aside.
The appellant was convicted of indecent assault and rape for allegedly taking the complainant to his house, chasing her around during the night and raping her. He was sentenced to one year imprisonment with labor and eight years imprisonment with labor, respectively, to run concurrently, with two years suspended for five years on condition of good behavior. The appellant appealed against both the conviction and the sentence on both counts. The court found that the complainant had an opportunity to report the incident on many occasions but she deliberately chose not to use it, which casts doubt as to her credibility. The court found that the complainant was not a convincing witness and the trial court should not have accepted her evidence in order to convict the appellant. The court held that the state completely failed to prove rape beyond reasonable doubt. The conviction and sentence on both counts were set aside. The appeal against conviction and sentence were upheld.