SEXUAL INTERCOURSE – PERSON WITH MENTAL DISABILITY

S v PRINS 2017 (1) SACR 20 (WCC)

 

Sexual offences — Unlawful intercourse with person unable to appreciate consequences of sexual intercourse by virtue of mental disability — Proof of — Expert evidence by psychologist and nature of victim’s testimony establishing mental disability as envisaged by s 1 of Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007.

 

The appellant was convicted in a magistrates’ court of two counts of contravening s 3 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 (SORMA) (rape through penile penetration of the vagina) and one contravention of s 5(1) (an act of sexual assault through the touching of the complainant’s vagina). The complainant was the 19-year-old stepdaughter of the appellant and her IQ ranged between 50 and 69, which placed her in the range of mild intellectual disability. In regard to her scholastic aptitude, her ‘test age’ was 6 years and she functioned as a grade 1 child — on this assessment she was regarded as suffering from a moderate intellectual disability. A clinical psychologist testified for the state that she had investigated the complainant’s understanding of sexual matters and noted that, while she had received sex education at school and was aware of the correct names for the various sexual organs, she had no knowledge whatsoever of sexual matters and no understanding of the concepts of contraception, sexually transmitted illnesses, or conception. The psychologist came to the conclusion that the complainant was in these circumstances unable to consent to sexual intercourse by virtue of the provisions of s 57(2) of SORMA.

The appellant contended that the issue of the complainant’s disability had to be considered holistically before the court could be satisfied that she was unable to appreciate the consequences of engaging in sexual intercourse, as she was contemplating marriage at the time of the attack. Furthermore, despite two charges of sexual penetration and one of sexual assault having been laid against the appellant, the victim expressly denied that anything other than one admitted incident had occurred. It was accordingly suggested for the appellant that the complainant’s ability, to distinguish between incidents that had occurred and those that had not, implied that she had more knowledge of sexual matters than originally appeared to be the case.

Held, that the properly qualified expert witness made it clear that the complainant’s mental disability fell squarely within the ambit of the definition of mental disability as contained in s 1(a) of SORMA. (Paragraph [15] at 24ab.)

Held, further, that the impression that one gained after reading the record was that the victim was indeed an unsophisticated young woman with intellectual disability, as the evidence of the psychologist suggested. The state had I proven beyond reasonable doubt that she was unable to understand the possibility of conception or of the contraction of sexually transmitted illness, should she engage in sexual intercourse, nor that she understood what contraception embraced. (Paragraph [22] at 25d–f.)

Held, further, that the sentence of 15 years’ imprisonment was appropriate in the circumstances. The appeal was dismissed.

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