A young man who faced 10 years behind bars for rape - a crime he denied as the complainant gave consent, although it was a case of mistaken identity - received an early Christmas gift when his conviction was overturned on appeal.
Two judges of the Gauteng High Court, Pretoria, found that the man (the appellant) mistakenly believed he had consent to sex; thus, the court found he did not have any criminal intent when he had sex with the woman.
In this rape case with a twist, the woman was quite happy to have sex with the appellant until she realised that she was having sex with the wrong person.
The complainant is a disc jockey who worked at a gig in Tsakane on the eve of the incident. When her return transport to Johannesburg failed after the event due to an accident, her boyfriend (a friend with benefits) arranged that she sleep at the house of his friend, the accused.
The complainant and her boyfriend went to the house of the accused, which had two bedrooms, one of which was empty. In the bedroom where the bed was located, they then had sex, after which the complainant dozed off.
After she fell asleep, her boyfriend left without telling the accused. The next morning, the complainant, who was facing the wall while lying on her left side, felt someone touching her.
She did not look who it was, assuming it to be her boyfriend. They then had sex, and she was a willing participant under the impression that it was her boyfriend.
She did not make eye contact with him or speak. She contends that at one stage she turned, but that he was completely covered in the blanket while engaging in sexual intercourse with her. After intercourse, she dozed off again.
When she felt his hands touching her a second time, she reciprocated by touching his body, only to realise that it was not her boyfriend’s body. The accused is taller and thinner than him. She told the court that she panicked but did not show it. She covered herself in the blanket, moved his hands off her body, and said that he must leave her alone.
He then asked her what was wrong. She told him that what he did amounted to rape. He asked her how that could be, and he left the room. He returned and asked her to calm down and suggested that they speak about it.
She told him that what he had done to her is something for which he would pay. She told her boyfriend what had happened, and they went to the police station to file a complaint of rape.
The accused's version is that he usually sleeps in that bed. He arrived at his house in the early hours of the morning, finding the complainant in his bed. He got undressed, woke her, and asked her whether they could have sex.
She said she was tired and went back to sleep. He then also got into bed and fell asleep. The next morning, he touched her again, and she was a willing participant in the sexual intercourse that followed.
He told the court that he had no idea that the consensual sex they had would end up being an offence.
The court noted that where a complainant consents to intercourse under the impression that she is consenting to “A”, when it is in fact “B”, there is no consent at all. “Consent by its nature must be informed. In this instance, the identity of the person to whom she consented was vital to her, and she cannot be faulted in this regard,” the court said.
Thus, the finding by the trial court that the complainant did not give valid consent can therefore not be faulted.
From the definition of rape, it is apparent that the knowledge of wrongdoing is part of the offence and needs to be established by the State beyond reasonable doubt.
This part of the crime was not assessed by the trial court, and this failure constitutes a misdirection, the appeal court said.
“On the accused's version, the first request that he made to the complainant for sex was refused as she was sleepy and tired. Having rested, he approached her again, and she was then a willing participant.”
Pretoria News