Uncle escapes rape charge

Sharon Mathala | Thursday October 10, 2013 22:35

Gabanagae said the state failed to prove beyond reasonable doubt that the accused had indeed raped the child.

'The court had to consider elements aligned with rape, such as consent as well as forced penetration. The state could not prove there was penetration. Therefore this court rules out the element of penetration, leaving the conclusion that the accused may have attempted to penetrate the young girl's private parts but failed.

'Evidence brought forth by medical tests prove that there were bruises on the young girls genitals as well as a yellowish discharge which was rather abnormal for a girl her age but the test reveals no sign of penetration,' he said.

The accused now faces a charge of attempted rape.  Gabanagae was however convinced that the fact that the small girl had maintained her story even four years after the incident, proves her truthfulness and credibility. During mitigation, the defence pleaded with the court to be lenient because the accused has to take his ARV medication.

The defence also prayed for a reduced sentence arguing that the accused does not only face losing his liberty but also owns a construction company that he solely manages. The court heard that the company employs 10 Batswana who could lose their jobs if the accused is jailed.

The accused was originally charged with raping his niece at his house in Block 3, Gaborone when the child visited her cousins. According to the child, at one point on that day, nature called and she quickly rushed to the restroom.

She related that the accused followed her into the restroom and demanded that she does not put her underwear back on. The complainant claimed the accused then tripped her on the toilet floor and had his way with her before threatening that if she tells anyone he would stab her to death.

During trial, the accused said the space in the toilet where it is claimed he tripped his niece is too small to accommodate the two of them. He also claimed that he had showed up at the place on the day to prepare food for the children before going back to work.

Sentencing is set for next Monday while the accused remains in custody.