08 Mar 2023

Extension 2 Magistrate Court has discharged and acquitted Desmond Kalaote of rape on the basis that the complainant’s evidence on lack of consent was tainted with doubt

Delivering the ruling on the no case to answer application on Tuesday Senior Magistrate Queen Moanga said the court decided to acquit Kalaote since the state had failed to establish a prima facie case that the alleged sexual engagement was without consent.
Evidence before court was that on October 04, 2020, Kalaote had unlawful carnal knowledge of the complainant.

Kalaote had after the close of the state case during trial, filed a no case to answer application, arguing that the state had failed to prove beyond reasonable doubt that the sexual intercourse which he never disputed was without consent.
In arguing his case, which led to him filing an application of no case to answer, Kalaote had told the court that on the night of the alleged crime, he had arranged to meet with his friend who came with her cousin (the complainant).
He said the complainant had agreed to go with him to his place where they consented to engage in the alleged unlawful sexual act.
Ms Moanga, in her ruling, noted that one of the state witnesses, the complainant’s grandmother told the court that upon enquiring on her grandchild’s whereabouts she was told that she went out with Kalaote, someone she greatly despised.
The court learnt from the complainant’s grandmother that she went to the accused person’s place and when asked to explain what had happened the complainant kept quiet.
On further interrogation, Ms Moanga said, the complainant told her grandmother that she would explain at home.
Ms Moanga also noted that evidence before court was that the complainant’s grandmother had told the court that she despised the accused person. The complainant had on the other hand told the court that her grandmother was a strict person, with a firm hand in disciplining children.  
Therefore, Ms Moanga said based on the evidence, the court must establish as to whether complainant bowed to her grandmother’s pressure and reported to the police that the sexual act was without her consent.
The court also wondered why the complainant agreed to accompany a person she did not know to his residence, to an extent of entering his house.
 Ms Moanga said it was difficult for the court to ascertain what happened inside the house, which ultimately led to the sexual activity that was not denied by either of the parties.
She said the proper test to apply was whether the alleged crime had been proven beyond reasonable doubt.
 Ms Moanga said the state must fully present the elements of the offence.
 “Sexual intercourse is not disputed, what is disputed is that there was no consent. Evidence before court disputing consent was tainted with doubt. The complainant’s evidence on lack of consent was tainted with doubt. The state has failed to prove beyond reasonable doubt that the sexual intercourse was done without the complainant’s consent,” said Ms Moanga. ENDS