Requirements for making a complaint in rape cases

Trust Maanda
Legal Position

RAPE is a crime defined in Section 65 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].
It is defined as follows: (1) If a male person knowingly has sexual intercourse or anal sexual intercourse with a female person and, at the time of the intercourse¾
(a) the female person has not consented to it; and
(b) he knows that she has not consented to it or realises that there is a real risk or possibility that she may not have consented to it;
he shall be guilty of rape and liable to imprisonment for life or any shorter period.
Rape is therefore sexual intercourse by a male with a female person who has not consented to it, when that male person knows that she has not consented to it or realises that there is a risk or possibility that she may not have consented to it.
There is legal penetration the moment the male organ slightly enters into the female organ though there may be no breaking of the hymen.
Legal penetration is considered to have been proved even if there is no full insertion of the male organ, but there is a slightest degree of contact with the female organ.
In the case of Torongo Supreme Court (SC206/96) it was held that, “As far as the law is concerned, placing the male organ at the orifice of the female organ, resulting in the slightest penetration constitutes rape.”
Full penetration is not necessary. The slightest degree of penetration will suffice in charge of rape.
The legal definition of penetration according to Black’s Law Dictionary, is: “The insertion of the male part into the female parts to, however, slight an extent, by which insertion the offence is complete without proof of emission”.
In order for the report of rape to be admissible, the rape report should be made timeously, voluntarily and to the first person to whom the complainant is reasonably expected to report to. This means that the report of the rape must be made as soon as it has happened or at the earliest available opportunity. A report made long after the incident of rape will have difficulties of being accepted as credible. But this does not mean that there is a set period within which a report should be made. It can be made at any time, but there should be an acceptable explanation why it was not made immediately the rape took place. For example, a victim may wait for a person she trusts to be available so she makes the report to her.
The other requirement is that the report to the person the victim is expected to tell must also be made voluntarily without any force being exerted or inducement being offered to the victim. The report must be spontaneous and not given on the basis of suggestive questions.
The requirements for the admissibility of a complaint in sexual matters are outlined in the case of State v Banana 2000 (1) ZLR 607 (S) which are; (i) that the report must have been made voluntarily and not as a result of questions of a leading and inducing or intimidating nature. (ii) the report must have been made without undue delay and at the earliest opportunity regard being had to all circumstances, to the first person to whom complainant could reasonably be expected to make it.
The evidence of a complaint in a sexual case being made at the earliest opportunity and voluntarily is admissible to show consistency of the complainant’s evidence and the absence of consent.
These requirements minimise the danger of false incrimination. However, in determining whether or not these requirements have been satisfied, a trial court should consider all the relevant circumstances and not adopt an armchair approach. The complainant’s testimony should be assessed on the basis that there is no standard reaction to rape, each case has to be considered on its own merits.
The nature and circumstances of each case should be considered carefully in order to rebut fabrication. The question should be whether after considering the totality of all evidence adduced the complainant can be deemed to be a credible witness. See State v Kaseke 1996 (1) ZLR 51 (S).
There is no ideal rape victim or set way in which they should act. Survivors of rape react differently to the crime both at the time when it is being perpetrated and after the perpetration. The court must consider circumstances of each case to find if the report of rape was made timeously and voluntarily and therefore admissible.

Trust Maanda is a legal practitioner and a partner at Maunga Maanda And Associates. He writes in his personal capacity. He can be contacted on +263772432646