Wednesday 20 December 2023


THE High Court has overturned a 14-year sentence imposed on a 17-year-old boy who had been convicted of raping his mentally-challenged girlfriend.

The teenager, who was born HIV positive, had also been punished by the trial magistrate for his status.

The incident happened in 2021 in Hauna, Mutare, when the boy was caught “raping” the 16-year-old girl in a maize field.

In his defence, the boy said the two had consensual sex, and he had not known the girl’s mental condition and that she only screamed after noticing her mother approaching.

The teenager, who was 15 in 2021, was sentenced to six years for rape before two years were suspended on condition of good behaviour.

The trial magistrate also sentenced him to 10 years for not disclosing his HIV-positive status, leaving him to serve 14 years effective.

However, High Court judges —Justices Isaac Muzenda and Lucy Mungwari — upheld the boy’s appeal and set aside the sentence.

They imposed a wholly suspended three-year jail term.

The judges noted that the magistrate erred in imposing two prison sentences.

They said the magistrate chose to ignore special circumstances, including establishing whether the boy had used protection or not.

“Under the circumstances, it is possible the boy succumbed to peer pressure.

“He stated that the two were boyfriend and girlfriend; he did not know that she had a mental condition, adding that they had consensual sex.

“All of these issues were red flags which the trial court ought to have paid attention to. It did not.

“In aggravation, the court emphasised on the boy’s HIV status and that he knew about his condition and the consequences which could result from having sexual intercourse with another person.”

The judges also noted that the boy’s cognitive ability was potentially low.

“The probation officer further stated that the stigma, due to his health and his low thinking capacity, may have driven him very close to the girl who is described in the medical report as ‘mentally slow’.

“In this case, the boy faced a single count of rape, but in her reasons for sentence, the trial magistrate, for reasons not so clear, entangled herself and stated that the court was sentencing the boy for the first count and also in respect of being HIV positive.

“It is not permissible therefore for a court to sentence him first for the commission of the crime of rape and then proceed to impose a second sentence for the risk of infecting his victim with HIV. The approach is flawed.”

The judges ordered the boy’s reintegration into society under the supervision, counselling and guidance of Mutasa Social Welfare until he turns 18. H Metro


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