Picture: iStock
A Western Cape High Court judge issued a stern warning to men who attack women who are drunk while out socialising, in a case where a rapist challenged being found guilty of two rapes, saying he should only have been sentenced for one.
“It would be naïve for this court to ignore the fact that it is a reality that people, including young adults, socialise more than others,” wrote Judge Deidre Kusevitsky in an electronic judgment handed down on Wednesday.
“Just because someone is intoxicated, does not give anyone licence to abuse, nor is it a green light to take advantage of someone who may be in a vulnerable state,” she continued on the appeal judgment.
“Just like men who may wish to socialise with friends, so too should women also have the freedom to do so, without fear, content in the knowledge that they will be safe; without the fear of being harassed, or assaulted, raped or murdered.
“Men, and I emphasise men, as they are generally the main perpetrators of these types of crimes in our country, need to know that vulnerable persons, and women and children in particular, should be protected and not harmed or abused.”
Kusevitsky had heard an appeal in August by 55-year-old Raghied Davids, who was convicted on two counts of rape in 2018.
The Paarl Regional Court had found him guilty on two counts of the rape of a woman who was relieving herself in an alley between flats near a shebeen, because the shebeen’s toilets were occupied.
He had also gone out to relieve himself, and when he saw her he hit her on the head with a blunt object and raped her.
Residents near the shebeen heard a commotion as she wrestled him and shouted before she was knocked unconscious.
They went to investigate and he was found lying on top of the unconscious woman.
He ran away when he saw them and in torchlight the witnesses saw that her pants and underwear were disturbed and she had blood on the lower part of her body.
They helped her up and took her home. When she woke up the next morning, she had no memory of what had happened.
However, she saw blood on herself and went for a medical examination.
Her name was withheld in the appeal judgment, but the court noted that the doctor testifying in the case, said the injuries to her genitals, anus, head, back, knee and flank were consistent with rape.
The woman had had consensual sex earlier in the evening, but the doctor did not believe the injuries she sustained after being found unconscious were as a result of the consensual sex.
Davids was arrested because he was known to the people who found him on top of the woman.
The appeal was delayed because parts of the court record and evidence were missing and had to be reconstructed.
The Paarl Regional Court convicted Davids on two counts of rape because the woman had been vaginally and anally penetrated, based on her injuries, and sentenced him to 10 years’ imprisonment on each count, with him serving 20 years in prison.
Davids appealed this on the grounds that the charges were duplicated.
The State submitted that if the court found this was the case, his sentence for one count of rape should be increased to the minimum of 15 years in prison due to the circumstances of the rape.
The Western Cape High Court found even though anal injuries were often associated with rape, previous case law had established that consecutive acts of penetration within a short period of time could be counted as one if there was an ejaculation soon after or if there was an interruption.
In this case, the court found the count of rape should therefore be one, not two.
However, Kusevitsky agreed with the State’s contention that he should be sentenced to 15 years for one count of rape because of the aggravating circumstances of her being hit on the head, choked and rendered unconscious.
His sentenced of 10 years for the one remaining count of rape was therefore increased to 15 years.
Kusevitsky also blasted authorities for never making any counselling available to the woman or taking a victim impact statement and said this should be done in all cases. She had been told arrangements had since been made to offer counselling.
She noted that the woman, who was 23 at the time, was out socialising with friends and had the right not to be “savagely pounced on”.
“What is worse in this instance, is the fact that the complainant was unconscious and had to find out about the rape by people within the community.
‘The shame and humiliation of that revelation would most certainly have had an adverse impact on her psyche and emotional well-being.”
The judge heard that Davids has children and a partner who needed his support.
He was a painter who earned R300 a day. However, Kusevitsky said his partner had managed to support herself and the children without his help.
She stated that according to the law, a first-time offender should get no less than 10 years, a second 15 years and a third no less than 20 years.
“I am therefore of the view that cumulatively, given the vicious and violent manner in which the complainant was sexually violated, that the interest of the community and that of the complainant trumps the personal circumstance of the appellant, and that this court would be justified in exceeding the minimum sentence provided,” the court ordered.
For more news your way, download The Citizen’s app for iOS and Android.
