Rape Trial Verdict Hinges On ‘Sexual Act’

A JUDGMENT in which a man accused of rape was instead found guilty of indecent assault put the spotlight on the legal definition of a sexual act and the crime of rape in the Windhoek High Court this week.

The verdict in the trial of alleged child rapist Stefanus Hendrik Ruba Gariseb hinged on the Combating of Rape Act’s definition of a sexual act and on the question whether the acts that Gariseb committed with a nine-year-old girl amounted to rape, as defined in the anti-rape law.

Judge Naomi Shivute concluded in her judgment on Tuesday that the deeds that Gariseb committed with the girl at Swakopmund on 1 April 2011 amounted to indecent assault rather than rape, in terms of the Combating of Rape Act of 2000.

Those deeds were distasteful, according to a summary of the evidence that Judge Shivute heard during Gariseb’s trial.

Although he denied the allegations against himself, the court found that the evidence showed that Gariseb had placed his genital organ between the girl’s buttocks and then made up and down movements. It was not proven that any sexual penetration took place.

The girl told the court that he had done that sort of thing with her on more than four occasions, but could not recall the dates when that had taken place.

The Combating of Rape Act defines rape as a sexual act that is committed under coercive circumstances. The law also says that coercive circumstances include circumstances where a complainant is under the age of 14 and the perpetrator is more than three years older than the complainant.

Aged 42 at the time of the alleged incident, Gariseb was more than three years older than the girl he was accused of having raped.

The law also defines a sexual act as the insertion – even to the slightest degree – of the penis of a person into the vagina, anus or mouth of another person the insertion of any other body part of a person into the vagina or anus of another person, unless that is part of sound medical practices carried out for proper medical purposes and “any other form of genital stimulation”.

Judge Shivute found that the deed that Gariseb committed with the girl may amount to stimulation.

However, she noted, the dictionary definition of “genital” refers to the reproductive organs of a person. That would not include a person’s buttocks, with the result that the stimulation of that part of someone’s body would not amount to genital stimulation, she reasoned. As a result of that, Gariseb’s conduct amounted to indecent assault, rather than rape, Judge Shivute found.

Having been found guilty of indecent assault, Gariseb was told that he has to return to court on Tuesday next week for the start of the sentencing phase of his trial.

Defence lawyer Vetu Uanivi is representing Gariseb on instructions from the Directorate of Legal Aid. The prosecution is being conducted by state aocate Innocentia Nyoni.

Source : The Namibian