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Rape is when a male has vaginal or anal sexual intercourse with a female person without her consent. The male person should also have realised a real risk that the female person may not have consented to be sexual intercourse. Penetration should have occurred and the degree of penetration is not of importance.
The elements of rape that courts consider or should consider are consent and penetration. Raped is where consent is said to be absent or situations where one is not able to consent at all. It should be noted that there is no requirement for the victim to have resisted physically to prove non-consent although in courts focus is placed on whether the woman physically resisted. Questions such as did the woman/girl scream or shout for help, or did she fight back are asked and this is the practise in courts.
In some instances, the perpetrator use violence or threats of violence to induce consent. Intimidation and unfair pressure also amount to vitiated consent. Consent is also said to be invalid where the perpetrator fraudulently misrepresented to the victim that something other than sexual intercourse is and was taking place.
In regards to penetration, the slightest degree of penetration of the virgina or anus suffices. It is not necessary that there should be full penetration.
After being raped, it is strongly advised that one gets medical attention within 72 hours. This is the first step that a rape survivor should take. This is so for the prevention of sexually transmitted diseases, including HIV thought the provision of post exposure prophylaxis (PEP) and unwanted pregnancy. The survivor is also given post trauma counselling as part of the treatment.
The second step is to report the rape to the police as soon as possible or the earliest possible. However there is no specific time frame in which one should report. It is advised that the rape survivor be accompanied by a friend or relative to the police to make a statement. This is for moral support. If there is any evidence from the rape, it should be taken to the police. This evidence includes torn clothes or undergarments or anything that can be used as evidence that rape transpired. Lack of physical evidence such as pointed above, does not mean that the case is dead or that no rape transpired. It is important the rape survivor be able to recall all that transpired and be able to closely/clearly identify her perpetrator. Identification of the perpetrator should be done without any doubt. This however has proved to be difficult especially in circumstances where one was raped in darkness or at night. At this point it should be noted that even if the perpetrator would have left evidence inform of sperms in cases where the perpetrator did not use protection, there is no free DNA testing in our hospitals. This is only done by private doctors and costs roughly about $500 and the state does not pay these fees on behave of the rape survivor but the survivor has to pay from her own pocket.
Some Rape survivors are taking too long a time to report to the police because of different circumstances surrounding them or their case. These circumstances include physical and psychological trauma, the relationship with the perpetrator for instance if the perpetrator is her pastor, prophet, politician, father, boyfriend or even husband. Some survivors also take time to report because of their status in the society, church, work and family for instance if she is married, or a daughter in law or a mother etc. Be that as it may, rape is a crime and a crime does not go unpunished just because a certain time frame has passed. In Shona it is said “Mhosva hairovi” A rape survivor is encouraged to report rape at any point in time when they are ready enough to stand trial and the emotional stresses that come with rape trial. The fact that the perpetrator has paid or has offered money to the survivor or her family does not take away the fact that a crime was committed. Even after such payments have been made, one can still report rape and use such payment arrangements as evidence that the perpetrator was trying to cover what he had done by making or offering payment. It is advised however not to accept such payments or arrangements because this does not solve the damage caused by the perpetrator. This leaves the survivor with even more physiological trauma just knowing that the person who raped her is out there and might repeat the same act on her or someone else. This leaves the survivor living in fear and constantly watching her back.
Next week’s article shall look at the process of making a police statement and the court procedure in rape trails.
By: Mildred Mashozhera