The High Court in Soroti yesterday freed a man who had defiled a 16 year-old girl after the state wrongly framed the charge as rape instead of defilement.
In a stunning ruling, the presiding judge, Celia Nagawa, noted that the “failure to rectify such a fundamental issue at an early stage is unfortunate and highlights the need for greater vigilance in the handling of criminal matters.”
Genesis
On August 3, 2021, at Aelenyang village in Katakwi District, Filbert Arugai allegedly had carnal knowledge of a 16-year-old female (names withheld).
The victim narrated in court that on that fateful day, she was sent by her aunt to collect household items (plates and cups) from her uncle, who was in Katakwi Town. She travelled by bicycle and was handed the items by her uncle. On her return journey, she noticed a motorcycle following her. She got off the bicycle to pave the way for him as the place was sandy. As she pushed her bicycle through the sandy area, Arugai, who was on the motorcycle, continued to trail her.
She told the court that near a cassava garden, the Arugai got off the motorcycle, jumped on her, dragged her into the garden, tore her knickers, and forcibly had sexual intercourse with her. She testified that she reacted by making noise, but Arugai strangled her.
She says she was rescued when her uncle arrived at the scene.
In court, Arugai pleaded not guilty to the charge of rape that had been brought against him. He claimed that the sexual encounter had been consensual.
The court confirmed that the victim was below 18 years of age and that, under the law, the issue of consent does not arise in this case.
It was also confirmed that the victim had a ruptured hymen with bruises and throat pain.
Turn around
Yet while the victim had been under the age of 18, court ruled that offense of rape, is legally irrelevant when the victim is a child.
“Where the victim is under 18 years, regardless of the circumstances of force or violence, the appropriate charge is defilement. The offense of rape is reserved for adult victims who can legally consent to sexual intercourse,” Nagawa ruled.
In the end, Nagawa freed Arugai arguing that it was expected that the learned prosecuting counsel would have noted and addressed this apparent error, and that learned counsel for the accused on state brief would have raised a preliminary point of law in respect of the charge of rape.
