LEGAL CONTRA FACTUAL CONSENT

S v CHINRIDZE 2015 (1) SACR 364 (GP)

Rape — Elements of — Absence of consent — Both factual and legal — Complainant mentally challenged — At no point evidence of factual consent — On this basis alone appeal fails — Not strict compliance with s 1 of Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 — Essential that be conclusive finding by psychiatrist in C compliance with section — Cannot with certainty say no legal consent — However, on evidence clear that complainant unable to differentiate between meaning of ‘rape’ and ‘sexual intercourse’ — Appeal fails as no factual consent proven.

The appellant was convicted in a regional court of contravening s 3 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 in that he had raped the complainant, a 15-year-old girl who was assessed by a psychiatrist as having an IQ of 60 or below. The psychiatrist found that the complainant was mildly retarded and was unable to tell the time or do simple calculations. The appellant contended that the sexual intercourse had been consensual. The court sentenced the appellant to 15 years’ imprisonment. On appeal the court held on the evidence that the intercourse between the appellant and the complainant had not been consensual and that the appellant had been correctly convicted of rape.

Held, however, that there had been insufficient evidence that the complainant was a person suffering from a mental disability as intended by s 1(1) of the Act. In order for the minimum sentencing provisions to be applied there had to F be a conclusive finding by a psychiatrist in strict compliance with s 1(1). It was difficult for this court to find that the complainant fell within one of the four categories mentioned in s 1(1) and accordingly this court cannot with certainty state that there was no legal consent.

Held, that, on the evidence presented it is clear the complainant was unable to differentiate between the meaning of the words ‘rape’ and ‘sexual intercourse’.
Held, accordingly, that, although the provisions of part I of sch 2(b)(iii) had no application, as the complainant was only 15 years old, the provisions of sch 2(b)(iii) were applicable and the sentence of 15 years’ imprisonment was nonetheless an appropriate sentence in the circumstances. The sentence was accordingly upheld on appeal.

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