The High Court of Zimbabwe has sparked controversy after releasing a man convicted of raping a mentally-ill woman, citing a lack of evidence that she was incapable of consenting to sexual activity.
The judges, Justices Nyaradzo Priscilla Munangati-Manongwa and Siyabona Musithu, argued that mentally-ill individuals are not inherently incapable of experiencing sexual pleasure and that their rights should not be disregarded without sufficient medical evidence, Newsday has reported.
The case involved Mtindi Zidyengi, who had been convicted by a lower court for raping a 33-year-old woman with a mental condition. Zidyengi, unrepresented, pleaded guilty to the charge of rape. However, the case was referred to the High Court for review, and the judges ultimately released him on June 23, 2023, on warrant of liberation.
Justice Munangati-Manongwa, in her judgment, emphasized that while the law aims to protect the mentally ill, it should not be assumed that they are incapable of consenting to sexual activity without proper medical assessment. “The notion that persons with mental conditions cannot enjoy sex in their own right needs to be dispelled where there is no evidence that they are mentally incompetent to consent and appreciate the nature of the act,” she stated.
The judge highlighted that sexual and reproductive health rights are not exclusive to those without mental health challenges. “Such issues constitute an important component of the right to enjoyment of quality of life for each individual,” she added.
The case involved a complex situation where the woman, who was on medication for her condition, had a relationship with Zidyengi. Her mother witnessed multiple sexual encounters between them, but did not initially report the matter. However, when the woman reportedly refused her medication, claiming she was pregnant and did not want to endanger the child, her mother revealed the sexual encounters to the police, leading to Zidyengi’s arrest and conviction.
The lower court found that Zidyengi had taken advantage of the woman. However, Justice Munangati-Manongwa questioned the validity of the conviction, pointing out the lack of expert evidence to prove that the complainant was incapable of consenting. She highlighted that the doctor’s report, while noting a history of hallucinations, also indicated that the woman was well-oriented, had average abstract thinking, good judgement, and good intelligence, concluding that she could follow court proceedings.
The judge also considered evidence suggesting that the woman had lucid moments, refused medication, reported her mother to the police, and was consenting to the act, even considering Zidyengi her boyfriend.
“I queried the propriety of the conviction when no expert evidence was called and the court did not even assess the complainant for it to give its value judgment. The accused person could not have been able to appreciate the technical aspects of the offence when he pleaded guilty to the charge,” the judge stated.
Justice Munangati-Manongwa argued that in the absence of expert evidence, the trial magistrate should have sought clarification from a psychiatric nurse rather than relying on personal opinions or beliefs regarding the woman’s mental state.
She emphasized that mental incapacitation involves the ability to make conscious decisions with full understanding of the consequences. “She could understand court proceedings and she was or is of average intelligence and her judgment and intelligence were rated as good. These comments by themselves pointed to an individual who was not always incapacitated by her condition but had lucid moments, is of average intelligence and her judgment rated as good,” she explained.
The judge also noted that the medical report should have alerted the court to the possibility of the complainant being aware of her decisions, including her decision to protect her unborn baby. She criticized the trial magistrate for basing her conviction on speculation lacking evidential support, a “cardinal sin” that no court should commit.
Justice Munangati-Manongwa stressed the importance of carefully reading and considering medical reports before drawing conclusions. “Given the criminal sanction that accompanies a conviction on this charge, any tardiness in handling such a matter can lead to great prejudice to an accused person when incarcerated,” she warned.
She further cited the Zimbabwean Constitution’s guarantee of inherent dignity in both private and public life, emphasizing that individuals with mental challenges should enjoy this right during their lucid moments. She also invoked the rights to equality and non-discrimination, including the right not to be treated unfairly based on disability.
Justice Munangati-Manongwa pointed out that Zimbabwe is a signatory to the Convention on the Rights of Persons with Disabilities, which underscores the rights to dignity, privacy, and non-discrimination for individuals with disabilities. “This resonates with what the complainant in casu did being able to make a decision that she was not going to be forced to take medication while pregnant. Thus, the unwarranted restriction to enjoyment of sex, entering into a relationship with a person of the other sex may border on infringement of rights of the mentally challenged persons given their right not to be discriminated upon on the basis of disability,” she concluded.
