CASE NO.: SA 06/2001
IN
THE SUPREME COURT OF NAMIBIA
In
the matter between:
THE
STATE APPELLANT
AND
GODFRIED
VRIES RESPONDENT
CORAM: Strydom,
C.J.; O’Linn, A.J.A. et Chomba A.J.A.
HEARD
ON: 1 October 2001
DELIVERED
ON: 7 December 2001
APPEAL
JUDGMENT
STRYDOM,
C.J.: The respondent appeared in the High Court before GIBSON, J,
on a charge of rape. It was alleged that he, on the 23rd
December 1995, at or near Katutura, in the district of Windhoek,
wrongfully and unlawfully had sexual intercourse with one SE, a
female person aged 10 years. The respondent pleaded not guilty and
was represented by a Legal Practitioner, Mr. Van Vuuren. After
evidence was heard the respondent was convicted of attempted rape and
sentenced to seven years imprisonment of which two years were
suspended.
The
appellant was not satisfied with the conviction and applied for leave
to appeal. This application was refused. A petition to this
court was successful and the appellant was granted leave to appeal
against the conviction of the respondent of attempted rape. The
main thrust of the appellant’s appeal was against the conviction of
attempted rape notwithstanding the finding of the Court-a-quo
“ ………that the State had proved beyond reasonable doubt that
the accused did insert his penis into the complainant’s private
parts and that the accused did intrude into the complainant’s labia
as far as the labia minora.”
Miss
Verhoef, who also appeared in the Court-a-quo, represented the
appellant whereas Mr. Potgieter appeared on behalf of the respondent.
In
the light of the Court-a-quo’s finding, the first issue
which must be decided, is what in our law constitutes the crime of
rape. In this regard Counsel for the appellant submitted that the
slightest penetration of the male genital organ into the genital
organ of the female would be sufficient to constitute the crime of
rape. I did not understand Mr. Potgieter to dispute that that was
the law. His attack on the judgment of the Court-a-quo is
based on the finding of the learned Judge that there was proof beyond
reasonable doubt that there was an intrusion into the vulva of the
complainant with the penis of the respondent. In fact Counsel for
the respondent submitted that on the medical evidence it is not even
sure whether the injuries, caused to the labia minora of the
complainant, was caused by the penis of the respondent or by fondling
of the organ with his hand, as was testified by him.
Various
excerpts from the judgment by the learned Judge-a-quo
demonstrate the correctness of the submission made by Counsel for the
appellant namely, that the Court was satisfied that penetration, in
this instance, took place into the labia and as far as the labia
minora by the penis of the respondent. I have already referred to
one such extract, which is set out on page 118 of the record. On
page 114 of the judgment the Court, referring to the medical
evidence, stated as follows:
“The
doctor was very firm that while penetration into the vagina was
excluded penetration of the labia minora could have occurred.”
Further,
down the same page, the following was stated:
“But
he (the doctor) did agree with counsel in cross-examination that if
the penis had gone deep inside the vagina he would have expected to
find greater injuries than there were on the complainant. This
answer though noted does not in my view detract from the evidence of
the complainant because she was very clear when she said penetration
was only a little bit.”
The
following extract taken from page 115 of the record, is to the same
effect:
“At
the end of the doctor’s evidence it came over to me as absolutely
certain that there was an intrusion into the complainant’s private
parts, the labia minora, with an object other than a finger or a
rubbing with a finger.”
Because
of the findings, set out above, the Court concluded as follows on
page 118, namely:
“ In
the result while the accused intruded into the complainant’s labia
minora with his penis he did not effect penetration as defined in
this type of charge. He is only guilty in my finding not of rape
but of attempted rape.”
As
I understand the above extracts from the judgment of the Learned
Judge-a-quo she was satisfied that there was an intrusion per
penis into the complainant’s labia as far as the labia minora.
Whether one calls it an intrusion or penetration does not seem to me
to make any difference as long as it is thereby understood that such
intrusion/penetration was accomplished by the respondent by means of
his male genital organ. The further finding of the Court that the
respondent did not thereby effect penetration as defined in this type
of charge, and the consequent conviction of attempted rape, postulate
in my opinion that the Court found that penetration by the male organ
into the vulva of the female organ did not constitute the complete
crime of rape. The learned Judge further explained this when she
refused leave to appeal against the conviction. See p. 156 of the
record. In this regard reference was made to certain reported cases
and the learned Judge stated that such cases were more in accord with
the dictionary meaning of the word “vagina”. The Court then
referred to The Shorter Oxford Dictionary.
Bearing
in mind that the meaning of the word vagina as given in the said
dictionary as “the canal between the uterus and vulva of a
woman….”, it seems to me that it would not be wrong to conclude
that the learned Judge was of the opinion that to constitute the
crime of rape there should be penetration of the vagina by the male
genital organ.
Me.
Verhoef referred the Court to many cases. A reading of these cases
shows that the issue of penetration, and what would be sufficient to
constitute the crime of rape, was not always addressed and when
addressed it was perhaps not always made clear what was meant
thereby. See R v Theron, 1924 EDL 204; R v Giles,
1926 WLD 211; R v V, 1960(1) SA 117(T); R v E, 1960(2)
SA 691(FC) and S v Molefe, 1969 2 PH H213(Bot.). Based on
the above cases and other authority such as van Leeuwen, Censura
Forensis, the author, I.E. Milton, S.A. Criminal Law and
Procedure, Vol. II, 3rd Edition, p 448 states in this
regard as follows:
“
(2) The slightest penetration is sufficient. Once penetration has
occurred the necessary element for liability of the male is
established. It is thus irrelevant that the male does not emit
semen, nor does it matter that the woman’s hymen is not ruptured in
the act.”
In
note 122 the learned writer, discussing the nature of the penetration
required, states:
“That
is, entry (in the sense of res in re) into the labia (the
anterior of the female genital organ) is sufficient.”
See
also Snyman, Criminal Law, third edition. In an article in
the South African Law Journal, Vol 108, 1991, p 148, Prof.
J.M.T. Labuschagne, Professor of Law at the Pretoria University, also
addressed this issue. The article is titiled Die Penetrasie
Vereiste by Verkragting Heroorweeg. (The Penetration Requirement
for Rape Reconsidered – my translation.) The learned author
referred to and discussed this issue with reference to what is
required by the law of various countries. In regard to the position
in South African law the following is stated on p150, namely:
“In
die hedendaagse Suid-Afrikaanse reg word verkragting gepleeg deur die
geringste mate van penetrasie van die vroulike geslagsorgaan
(blykbaar die vulva) deur die van die manlike geslagsorgaan.” (In
current South-African law rape is committed by the slightest
penetration of the female genital organ (apparently the vulva) by the
genital organ of the male. – my translation.)
Labuschagne,
op cit, at p. 151 points out that according to English law
penetration of the labia was sufficient to constitute rape. (See
Smith and Hogan: Criminal Law, Eighth ed. P 151.) In the
case of S v K en ‘n Ander,1972(2) SA 899(AA) the appellants
were convicted of rape in the Court-a-quo and the first
appellant was sentenced to death and the other one to 15 years
imprisonment. They appealed against their sentences and the Court
of appeal came to the conclusion that this was not an extreme case
and altered the sentences to ten years and three years respectively.
In the course of the judgment the Court mentioned the fact that it
was common cause that penetration went beyond the labia but that the
hymen was still in tact. Although the case dealt with sentencing
and not with what would constitute penetration for the purposes of
rape, the Appeal Court accepted, so it seems, that there was
penetration to constitute the crime of rape. See also in this
regard the judgment of the Namibian High Court in S v Immanuel
Mbai, case no.:CC94/98, unreported, delivered on 1998/06/03.
However in the case of S v F, 1990(1) SACR 238 (AD) the
following clear statement was made by Kumleben JA who stated on p
244g – h that in law the slightest penetration of the male genital
organ into that of the female would constitute the crime of rape.
Dealing
with this issue the Court-a-quo found support for her view in
the cases of R v Theron, supra, and S v Molefe,
supra. As was pointed out by Ms. Verhoef the Court in
Theron's-case did not decide that vulvae penetration was not
sufficient to constitute the crime of rape. What the Court decided
was that there was no evidence of any degree of penetration and
concluded that the accused was only guilty of an assault with intent
to commit rape. The Molefe-case is a case in point.
However this case was decided in Botswana and was at the time not in
accordance with English law on this point. (See Archbold, 36th
edition, para 2879).
Under
the circumstances I have come to the conclusion that the submissions
made by Counsel for the appellant are correct and that to constitute
the crime of rape the slightest penetration of the male genital organ
into the vulva of the female genital organ will suffice. It follows
therefore that on the finding of penetration by the Court-a-quo
the respondent should have been convicted of the crime of rape and
not an attempt to rape. However this is not the end of the matter
as Mr. Potgieter submitted that the State did not succeed in proving
even this slight degree of penetration. In fact, as was previously
pointed out, Counsel submitted that the respondent only fondled the
private parts of the complainant and is therefore only guilty of
indecent assault.
It
is clear that the Court-a-quo did not accept the version of
the respondent that he only fondled the private parts of the
complainant. In this regard the complainant testified that she and
the respondent were lying on the bed on their sides and facing each
other. After he had removed her panty and also pulled down his own
shorts and underwear he then parted the lips of her genital organ
with his fingers and inserted his penis into her private parts. She
said that he then made up and down movements with his buttocks and
she felt pain. He later turned her on her back and repeated the
whole process. At the time they were both covered with a blanket.
All this happened in the presence of another 10 year old girl,
namely EE. EE testified that the complainant and the respondent
were first lying side by side but that the respondent later lay on
top of the complainant and that she saw him making up and down
movements with his buttocks. Both little girls also testified that
they saw the penis of the respondent and that it was erect.
After
the respondent was arrested he made an exculpatory statement to the
police in which he stated that he did not know what had happened on
that particular day because he was totally drunk and that he had not
slept the previous night. He ended this short statement by saying
that he did not know whether he did it or not. This latter part is
seemingly a reference to the allegation that he had raped the
complainant. This statement was in total conflict with his
evidence in the Court where he could describe in detail what had
happened on this particular occasion. Respondent, not surprisingly,
had great difficulty in explaining this discrepancy. Although the
statement was taken some two days after the event the respondent said
that he was still so confused that he did not want to tell the police
something which he was not sure of and that was why he said that he
did not know what had happened. Only afterwards, and when he had
time to reflect, was he able to put everything together.
There
is evidence that the respondent was intoxicated. A blood sample
taken at the time showed that the concentration alcohol per 100 ml.
of blood was 0,30. However it was never part of the respondent’s
case that he was so drunk that he did not know what he was doing or
that he was not capable of forming the intent necessary to commit the
crime of rape. In fact the respondent testified that he knew what
was going on. This was also demonstrated when he gave detailed
evidence of what had happened when he testified.
There
are other unsatisfactory features in the evidence of the respondent
to which the learned Judge-a-quo referred in her judgment.
The respondent testified that whilst he was busy fondling the
complainant she seemed to have enjoyed it. This can hardly be so
where that fondling resulted in a bruising of the labia minora. The
respondent was also mindful of this and he denied that he had caused
the complainant any injury or that she was crying when she left him.
I agree with the Judge that these lies go a long way to destroy the
evidence of the respondent. In my opinion the learned Judge
correctly rejected the evidence of the respondent that he was only
fondling the private parts of the complainant and correctly accepted
the graphic description of the complainant of what had happened.
Complainant’s evidence on this issue was not shaken under
cross-examination and she was to a certain extent supported by the
evidence of E. There is also the evidence of SE, the uncle of the
complainant, that she was crying when he came to fetch her at the
house of the respondent, which evidence supports the version of the
complainant and contradicts that of the respondent.
The
question remains whether the appellant proved beyond reasonable doubt
the requirement of penetration to constitute the crime of rape.
Regarding this issue I have already referred to some of the evidence
given in this regard by the complainant. To this must be added her
evidence given under cross-examination. She first of all admitted
that prior to this incident she did not know what was meant by the
words sexual intercourse. She further stated that the respondent
penetrated her with his penis whilst they were lying side by side and
again when she was lying on her back with the respondent on top of
her. She stated that this penetration was a little bit deep and
when she felt the pain she could then feel how deep it was.
In
regard to the evidence of penetration I think that it would be
dangerous to accept the evidence of the complainant at face value.
That is not so because she was lying to the Court but because of her
total inexperience in matters concerning sexual intercourse. In the
nature of things her opinion of a penetration could only be based on
what she felt. This evidence must be contrasted with that of the
doctor who was of the opinion that if there were such penetration he
would have expected more injuries. Although the evidence of the
complainant that the respondent parted the lips of the labia can in
my opinion be accepted, the fact of the matter is that an intoxicated
respondent, who could in any event most probably not see what he was
doing did not, by doing so, facilitate a possible easier way of
entry.
The
only finding by Dr. Ashour, which indicates sexual interference with
the complainant, was the finding of recent bruises on her labia
minor. These bruises were found on the right side of the labia
minora. All else were normal and the hymen of the complainant was
intact. This caused the doctor to conclude that the injuries were
caused by external manipulation with a hard or soft object such as a
penis or anything else, probably by just rubbing with such an object
on the labia minora. The evidence of the complainant that she felt
the penis of the respondent inside her thing was put to the doctor by
Me. Verhoef and he was asked whether his findings were consistent
with what was testified to by the complainant. The doctor said that
it could be possible. Also when the complainant was lying on her
back it was possible that a rubbing of the penis could have caused
the injuries. Lastly Counsel asked the doctor whether penetration
of the labia majora and minora was possible. The answer of the
doctor was that it could be possible.
Under
cross-examination Dr. Ashour stated that it was not very likely that
a finger caused these injuries although he did not exclude the
possibility. The witness was asked by the Court whether the labia
minora was situated deeper than the majora and the doctor’s answer
was no, it was superficial. On a further question whether it was
situated on the inner part, seemingly of the vulva, the doctor said
yes but he repeated his answer that it was superficial. On a direct
question by Counsel for the defence whether he would say that in this
case penetration took place the doctor answered as follows:
“I
would say that penetration to that labia minora or labia majora, both
of them, could be highly suspected. Because I have written external
manipulation was highly present for such case. But I do not know
from the object or from penis or anything. It could be anything of
these. But it is highly suspected to be present in such case.”
Mr.
Potgieter pointed out that many of the answers given by the doctor
were difficult to understand. There is no doubt that the doctor had
a problem expressing himself clearly in English. The above answer
is one example of many. Looking at the above answer it is not at
all clear to me whether the doctor wanted to convey that there exists
a high degree of suspicion that penetration did take place or whether
it is suspect to a high degree that it did not take place. The
reference to “external manipulation” is also ambiguous. Does it
mean that something external was responsible for the injuries or does
it mean that the manipulation was external i.e. not internal?
In
re-examination Counsel for the State asked Ashour whether a small
child undergoing the trauma of a rape would be able to differentiate
between something, which she feels deep inside her, or something,
which she only feels superficially. This question was obviously
asked with a view to reconcile the evidence of the complainant when
she said that she could feel that penetration occurred “ a little
bit deep” with that of the doctor. The witness declined to
express any opinion in this regard. This, so it seems to me further
demonstrates that little reliance can be placed on the say so of the
complainant as to whether there was penetration per penis into her
private parts or not. It would even be more difficult for an
inexperienced person, such as the complainant, to express an opinion
with any certainty where it is clear that even if it is accepted for
the sake of argument that there was any penetration that it was of a
very superficial nature.
Another
aspect, which is of concern, is the lack of medical evidence as to
the development of the complainant. From the evidence of Dr.
Ashour it is clear that the complainant, who was ten years old, had
not yet reached puberty. Although the doctor testified that the
development of her genital organ was normal it is not at all clear
whether thereby is meant that her development is normal for a little
girl of 10 years which may be quite different from the development of
a girl well into her puberty. This is an aspect which may have a
bearing on the question whether there was penetration or not and in a
case such as the present where penetration, or the lack thereof, is
an issue, prosecutors must ensure that all relevant evidence is
placed before the Court. I must further point out that the medical
evidence is not at all clear where the bruising occurred on the labia
minora. The doctor testified that it was on the right side but did
not say whether it was on the inside or the outside of the lip or on
the edge thereof. The sketch on the J88 is not of much help and
seems to indicate that the bruising was mostly on the outer edge.
Lastly
I must refer to the evidence of EE. She claimed that she saw that
the penis of the respondent did penetrate the genital organ of the
complainant. What is more she was even able to give the Court an
estimation of how deep this penetration was namely from between three
to four centimeters. The Court-a-quo, correctly in my view,
did not base its finding that there was penetration on this evidence.
It is first of all, given the evidence of the complainant that she
and the respondent were covered with a blanket, highly questionable
whether the witness could see anything. As I understood the
evidence of complainant the blanket only came off when E pulled her
out from under the respondent at which moment the respondent then
fell off the bed. Also given the position of the bodies of the
complainant and the respondent, with the latter lying on top of the
complainant, it seems to me highly unlikely that the witness would
have been able to see what she professes to have seen and, what is
more, to provide the Court with an estimation of how deep such
penetration was. In my opinion this part of the evidence of E must
be rejected.
Bearing
in mind all the evidence I am not satisfied that it was proven beyond
reasonable doubt that there was penetration of the genital organs of
the complainant. The medical evidence, at best for the appellant,
does in my opinion not go further than raise the possibility that
there was penetration as required by law but on the medical evidence
it is difficult to conclude that this was the only reasonable
inference to be drawn from the evidence. In my opinion the various
answers given by the doctor did not exclude other reasonable
possibilities, e.g. that the injuries could also have been caused by
the penis of the respondent rubbing on the vulva without there being
penetration. I do not agree that the evidence of the complainant
cleared up this uncertain evidence. Her evidence was not, as was
found by the Court-a-quo, that penetration only occurred a
little bit. Her evidence was that penetration was a little bit
deep into her genital organ, which is not supported by the
medical evidence especially where the doctor was at great pains to
point out how superficial the labia minora was.
Under
the circumstances I find that the appellant was correct that in our
law the slightest penetration of the female genital organ by that of
the male genital organ would constitute the crime of rape. However
I am not satisfied that it was proved beyond reasonable doubt that
there was penetration as required by the law and consequently the
appeal must be dismissed.
In
the result the appeal is dismissed.
(signed)
STRYDOM,C.J.
I
agree.
(signed)
O’LINN A.J.A.
I
agree.
(signed)
CHOMBA A.J.A.
COUNSEL
ON BEHALF OF THE APPELLANT: Adv. A.T. Verhoef
INSTRUCTED
BY THE: Prosecutor-General
COUNSEL
ON BEHALF OF THE RESPONDENT: Adv. J.D. Potgieter
INSTRUCTED
BY: Metcalfe Legal Practitioners
S v Vries (SA6/01 ) [2001] NASC 6 (07 December 2001);