BY JENNIFER KUSAPA
A man has been found guilty before the High Court of having raped his own daughter, twice on two separate occasions in 2016.
The man is a teacher by profession, and was teaching in one of the schools in Isabel when the incidents occurred.
He was charged with two counts of rape pursuant to section 136F (1) (a) and (b) of the Penal Code [cap. 26], as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016 (“the Amendment Act 2016”).
He denied the charges and a trial was conducted on his case.
The man had defended himself by claiming that the sexual intercourse was consensual on both occasions.
Chief Justice Sir Albert Palmer, in passing judgement, explained that the burden of proof lies with the prosecution to prove beyond a reasonable doubt that sexual intercourse was without consent and that the defendant knew or was reckless as to that issue of lack of consent.
“I have had the opportunity to carefully assess the evidence of the victim, observe her demeanour in court and find that throughout she had remained consistent, clear and unfazed about the issue of consent, that she repeatedly refused to have sex with him and denied his advances.
“I am satisfied this denial or refusal would have been more than sufficient to convey plainly and clearly to the defendant in no uncertain terms, of her lack of consent. He could not have been mistaken or confused about that plain fact. He should have known and ought to have known that she did not want to have sex with him for the plain and simple reason that he was her ‘real father’, that it was wrong and that he knew that she was afraid of him,” Palmer said.
He also said there is ample evidence before the court that the victim did not agree or consent to the request for sexual intercourse on both occasions, for the reason inter alia, that he was her “real” father and that she was ashamed, apart from her fear of being hurt or harmed.
The evidence adduced by prosecution has been quite clear and consistent throughout, that she was never a willing participant to the demands of the defendant for sexual intercourse. On each occasion she was asked, she said no to him. This would have been plain and compelling evidence of lack of consent, and has not been discredited by defence, Palmer said.
He added, the defendant (father) should have known that as a father, he held an inherent position of authority, power, trust and responsibility towards his daughter and that if he persisted in his demands and actions, the daughter was bound to comply. If he did not know, then he was reckless to that most obvious fact.
“As a father she respected and trusted him that he would not even think of asking her to do such a disgraceful and shameful thing to her, his own daughter, but he did not. He forgot about all those restraints and compelled her to have sex with him.
“I am satisfied prosecution have established on the evidence the elements of the offences of rape on both occasions and he should be convicted accordingly.”
Palmer then adjourned the case for July 2, 2021 for sentencing submission.