High Court Judge Alfred Siboleka on Tuesday convicted three young men from Khorixas on three counts rape each over a case involving a woman they were drinking with.
The three men, Victum Gomeb, 32, Elvis Gau-Goab and Harry Patrick Bowe, denied they raped the complainant and instead claimed she gave consent for one of them to have sexual intercourse with her at the start of their trial.
However, Judge Siboleka found there is credence to, as well as material corroboration of the complainant’s evidence that all three accused sexually assaulted her.
“This is very clear when regard is had to the detail she testified about as to how she was sexually assaulted,” the judge said.
During her testimony, the complainant, who was 17 years old at the time of the multiple rape, testified in detail how first Gomeb with the assistance of Bowe and then Bowe with the assistance of Gomeb, followed by Gau-Goab, took turns to violate her. She denied giving anyone consent to have sexual intercourse with her.
According to the judge, the fact that the complainant did not make mention of rape to the police at the scene of the crime, nor to her relatives who brought her clothes to the hospital – as argued by the defence – does not take the defence’s case anywhere.
Her conduct at that stage does not mean she was not sexually assaulted, nor does it mean that what she testified about in that regard is a lie, he stressed.
According to Judge Siboleka, the missing dimension in sexual offences is that courts often liken the rape victim to other victims of any offence, such as assault, theft, robbery, or housebreaking with intent to steal and theft. In all these offences, he said, the female victim would immediately at the first available opportunity narrate her ordeal freely. She would be able to tell any person, including the police, what had happened to her and who her assailant was – if he is known to her.
However, the judge noted: “In my view detailing the circumstances leading to the victim being raped are in themselves very hostile to the sanctity of her femalehood. Often forgotten or overlooked is the stigma, or permanent scar that is attached to a rape victim within the society where the incident took place.
“Even worse is when the victim’s assailants were more than one, as in this case. It is these serious after-effects attached to the rape that makes the victim feel very uncomfortable to tell other people what exactly happened to her. There is fear, in my view, of being seen as a person who went out looking for it, as a person of loose moral behaviour, a drunkard, or even a prostitute. These are factors that could easily tear the victims’ femalehood apart.”
Siboleka said it is not in dispute that the three accused, Benita Eises, and the complainant were under the influence of alcohol when the incident took place.
It is a fact that contradictions in the evidence of witnesses testifying about what they saw happen while sober is a daily occurrence in our courts, so it would likely be worse when it comes to an event unfolding in front of intoxicated persons, he noted.
During the trial it was revealed that Gomeb, Gau-Goab and Bowe were together with the complainant and Eises, the elder sister of Gomeb, at a bar called Hot Spot in Khorixas, where they were consuming alcohol. At one stage the complainant went outside to relieve herself. The three men followed her and dragged her to a nearby halfbuilt church building, where they took turns to rape her.
Siboleka found that the prosecution proved its case beyond reasonable doubt and convicted the three men on three counts of rape each. They were out on bail during the trial, but their bail has since been cancelled and they were remanded in custody until October 14 when sentencing proceedings will start.
Advocate Jackson Kuutondokwa appears on behalf of the state, with Monty Karuaihe for Gomeb, Milton Engelbrecht for Gau-Goab and Johan van Vuuren for Bowe – all on the Legal Aid ticket.