Malawi clinician accused of raping unconcius patient argues prosecution fails to prove case

A clinical officer at Mzuzu Central Hospital charged with sexually assaulting a mentally challenged patient early this year has asked the Mzuzu Magistrate Court to dismiss the case arguing that prosecution evidence has failed to prove beyond reasonable doubt that he raped the patient.

In the Chief Resident Magistrate Court 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.

But later the State changed the charge to rape contrary to section 132 of the Penal Code.

“Besides, there is no proof that it was the accused who committed either of the crime.  It is our prayer…that the suspect should be acquitted of the counts charged,” Chipwatali’s lawyer Christon Ghambi of CHRAM Associates argued.

Ghambi: Hearsay can not be admitted as evidence in court

Ghambi: Hearsay can not be admitted as evidence in court

It is alleged that on the 20th January, 2013 at Mzuzu Central Hospital Chapwatali raped a mental female patient without her consent after sedating her.

He denies the charge but the court already found him with a case to answer and will deliver judgement on March 27th 2013.

However, in his 18 page submission filed for no case, a copy Nyasa Times has in possession, Chapwatali through Ghambi 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.

“However, our question of crux is whether a person can be charged with rape and defilement of an imbecile from an alleged single event? It comes out clearly that the state was not sure of the charges hence it was left to the accused to be wondering as to which offence was charged with,” Ghambi said.

The defence also contends that the State failed to prove the imbecility of idiosyncrasy of the patient “name withheld” arguing that such proof requires expert testimony.

“No expert was called to testify on the imbecility of the alleged victim.  A Police Officer tendered a report alleged to be a mental status of the patient signed by a certain medical expert. We are of the view that in the absence of person who authored the report and with no explanation to the court on the report, we submit that this was hearsay,” Ghambi said.

On rape, Ghambi said two essential facts must be established by the court before the offence can be said to be proved.

“The first one is penetration of the female sexual organ by the male sexual organ.  It is said that the slightest penetration will suffice to find an offence of rape.  It is not necessary that the man should reach orgasm or ejaculate.

“The second fact which must be proved in rape cases is lack of consent by the woman or girl. Consent which is obtained by misrepresentations, threats, etc is not real consent for the purposes of rape,” he said.

According to Ghambi the fact that Nursing Officer Jean Vikhumbo saw the back view of Chipwatali holding the patient with trousers intact and his body shaking which she demonstrated as having sex does not prove that sexual penetration took place.

“Is this the required proof for penetration as required by the law of the land? Assuming it is true, which we do not believe, could body movement or body contact be proof of penetration? We answer in the negative. This could be strange to the law,” he noted.

In his defense, Chipwatali told the court that the patient came in a violent state hence he had to sedate her so that he could examine her.

He stated that he stayed with the patient for 5-7 minutes in the presence of her guardian who never left the room.

“On the presence of sperms in the swab collected from the patient we have an observation. The patient is an adult and might have been engaged in sexual activities even before she came to the hospital or she might have even been assaulted during the night of 19th January, 2013 as reported to the police.

“It also came out again clearly from the state witnesses that sperms can stay in the vagina for 72 hours alive and can be detected. We do not have evidence that for three days prior to the 20th January, 2013 the patient never had sexual intercourse,” Ghambi said.

The state paraded seven witnesses.

Chipwatali, 36, comes from Chimbia Village Traditional Authority Kaphuka in Dedza District.

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