Judge confirms life sentence for rapist of mentally disabled woman

A DEFENCE advocate’s argument that there was no evidence of trauma to a mentally disabled rape victim “outside of the immediate trauma of the rape”, did not find favour with a Western Cape High Court judge.

“In effect, what (the defence) invited the court to do was to conceive of the worst possible rape that this court could imagine and then work backwards therefrom in order to test whether the crime – which was the subject matter of this case – fell within this category,” said Judge Dennis Davis

“I do not think that this is the appropriate way to deal with the crime of rape, particularly in a case where the facts are already as extreme as I have described them.”

The judge said he was “extremely troubled” by the submission” and added that, in 1976 a study in the American Journal of Psychiatry contained compelling evidence to suggest that the overwhelming majority of rape victims exhibited maladaptive coping mechanisms after rape.

Outward adjustment may last for several months to many years, but inevitably this would give way to a range of pathologies that can be captured under the idea of trauma, the study recorded.

“This was a violent and barbaric act perpetrated on a most vulnerable individual,” Judge Davis said.

His comments were made in a judgment he wrote in a full Bench Appeal which convicted rapist Siyabulela Gwarubana had lodged against his life sentence.

In the judgment it emerged that Gwarubana broke into the victim’s home on the night of October 14, 1999 and cut the telephone connection.

The victim’s young sister woke up and hit the panic button to trigger the alarm.

This gave their mother the opportunity to run out of the house to alert a neighbour to call the police.

When the police arrived, they caught Gwarubana in the act. He refused to obey their orders to stop raping the vic- because, since the rape victim was mentally disabled, a prescribed life sentence was applicable unless he could prove that there were substantial or compelling circumstances to justify a lesser sentence.

Gwarubana failed to do so, but after being jailed for life he appealed to a full bench.

On appeal, his lawyer argued that the charge sheet did not make any reference to the fact that the mental state of the victim triggered the sentencing regime in terms of which life was imposed.

In addition, he argued that the clinical psychologist’s initial report was incomplete.

In the report, the psychologist said that the victim functioned predominantly in the range of severe mental handicap and was not able to testify.

She was also unable to consent to sex, had no understanding of sexual matters, was unable to provide an account of the rape and did not understand the difference between truth and falsehood or the purpose and proceedings of a trial, the reported stated.

However, Judge Davis said: “In order to determine whether an accused can be said to have a fair trial, where the State intends to rely upon the provisions of the act, this fact should pertinently be brought to the attention of the accused at the outset of the trial. But failure to do so is in itself not fatal.”

He said the victim’s mental condition was revealed to the defence during the trial and her mother also testified about it.

“While it must be accepted that this report was handed in to justify the absence of testimony by the complainant given her mental handicap, the fact her condition was revealed to the appellant’s legal representative during the course of the trial and, certainly before the opening of appellant’s case, would have sufficed, outside any plausible explanation to the contrary, to trigger knowledge that the minimum sentence regime was now applicable,” he said.

He was unable to conclude that the trial was unfair.

Judges Daniel Dlodlo and Robert Henney agreed.