The Mzuzu Chief Resident Magistrate Court has convicted a Clinical Officer Hope Chiphwatali with rape of an imbecile while on duty at Mzuzu Central Hospital saying the state had proved beyond reasonable doubt all the elements of rape.
The court said it will pass its sentencing on Thursday.
Maximum penalty for pape in Malawi is death.
But Chiphwatali’s lawyer asked for leniency in mitigation, saying that the convict deserves a less than five years custodial sentence because the conviction meant that he has lost his job and benefits.
It is alleged that on the 20thJanuary, 2013 at the hospital, Hope Chapwatali raped a mental female patient (name withheld) without her consent after sedating her.
Defense lawyer Christon Ghambi of CHRAM Associates also said his client had been ostracized by society because of media reports hence suffered from public humiliation.
However State Prosecutor Jacob Montfort Nambiri urged the court to mete a deterrent sentence, saying Chipwatali abused his trust and responsibility since the patient was vulnerable because of her condition.
“The convict planned the commission of the crime and sedated the victim making sure that she could not physically protect herself. So where crime is planned it calls for stiffer penalties,” Nambiri said.
In her testimony Principal state witness Nursing Officer Jean Vikhumbo told the court that she saw the back view of Chipwatali in between the patient’s legs and his body shaking which she demonstrated as having sex.
“Do we need to see people’s private parts or to see them naked to conclude that sexual intercourse is taking place? The testimony of Jean Vinkhumbo, who saw the convict, is credible because she is a mature person and knows when sex is taking place?
“Do we need medical evidence to deduce that a person is dead when we can clearly see that the head is severed from body?” Chief Resident Magistrate Joseph Chigona queried.
Chigona said evidence from other state witnesses corroborated Vinkhumbo’s testimony.
But Ghambi said he will appeal against both the sentence and conviction, saying the Court erred because his client was wrongly charged.
“You cannot charge someone with charges that give an alternative. In that way you are giving the court the liberty to choose the charge it wants. On top of that we still maintain that penetration did not take place. You do not prove rape by the presence of sperms only in the private parts,” Ghambi said outside Court.
Chigona also said despite the fact that sperms were found in the patient’s private parts is indicative that penetration took place.
“This court was meant to believe that a vaginal swab was inserted into patients’ private parts up to the cervix and that sperms were found. Therefore the presence of sperms that far means they came through sexual intercourse. We therefore hold that there was penetration,” he said.
Under Criminal case number 4 of 2013, the State versus Hope Chipwatali, the state initially charged Chipwatali with Defilement of an imbecile contrary to section 139 of the Penal Code.
Later the State changed the charge to rape contrary to section 132 of the Penal Code.
In his submission for no case to answer Chipwatali through Ghambi had asked the Court to dismiss either charge arguing that Prosecution evidence had failed to prove beyond reasonable doubt that either offence happened.
Chapwatali also said rape or defilement of an imbecile are two distinct offences with quite different elements and one is not a substitute or an alternative of the other.
In his one and half hour judgement Chigona quashed the defense’s argument saying counts can be charged cumulatively and alternatively where there is uncertainty.
“Section 155 of the penal code gives the court liberty to amend the charge if evidence points in the other direction. If a suspect is charged with rape and evidence does not go that direction, the Court can substitute to the relevant charge.
“In this case the court did not substitute charges. The only irregularity was that the charges were not numbered cumulatively but we do not see that as prejudicial to the suspect,” Chigona said.
The Magistrate also quashed the defense’s argument that the sperms found in her private parts could have been from other men since there were reports that the patient was sexually assaulted on the night on 19th January 2013.
“We do not believe that the patient was sexually assaulted before coming to the Hospital. Sperms found on her were less than 12 hours old meaning she could not have been raped in the streets,” he said.
Chipwatali 36, hails from Chimbia Village Traditional Authority Kaphuka in Dedza District.Follow and Subscribe Nyasa TV :