Is it rape or defilement?
Sharon Mathala | Friday May 13, 2016 15:30
Is she 16 or is she 17 years old? What are the potential charges? Where is the line drawn?
Since the scandal broke out last week, social media has been rife with both terms being used interchangeably. Others have attempted to make a distinction, saying the age of the victim in the case determines which charge or term to use.
On Thursday, police spokesperson, Witness Boseja said a case of defilement had been opened, and investigations were continuing.
“When investigations are complete that is when the proper charge can be laid,” he said.
Botswana’s rape laws are complex, involving a large number of variables to eventually arrive at a charge and pursue a conviction. Commentators, particularly lobbyists, have noted grey areas that some creative defendants have used to stroll free out of courtrooms.
While rape and defilement both have to do with having sexual intercourse without the consent of the other party, there is a thin line between them.
Shockingly not all the time will a man or woman be charged with defilement when they have had sexual intercourse with an underage girl or boy.
The key difference in the two offences is consent. When it comes to rape the defence of consent can stand in court and it is considered an indispensable element.
In defilement consent is not even a factor.
In Botswana, where a girl is under the age of 16 years, which is the legal consent age, if it is proven in court that there was no consent, the appropriate charge is rape.
If consent is proved then the appropriate charge is defilement.
One cannot defend themselves in court and say the ‘victim’ was under the age of consent, but agreed to have sexual intercourse with the person charged.
The defence, however, in cases involving victims under the age of 16, is to prove that the offender did not know the age of the victim.
According to the law, Section 147 (5) of the Penal Code reads: “It shall be a sufficient defence to any charge under the section if it appears to the courts before whom the charged is brought that the person so charged had reasonable cause to believe and did in fact believe that the person was of or above the age of 16 years or was such a charged person.”
This means that if one has sexual intercourse with a minor, and proves to court that he did not know she was under the age of 16, the charge of defilement can be dropped.
However, when the victim is a child under the age of 12, the offence is purely rape. This is because such a child is irrefutably presumed to be incapable of legally consenting to sex. Similarly, a child above 12, but below 16 years is also presumed to be incapable of consenting to sex.
In previous cases, courts have accepted the argument from defendants that in defilement, the victim’s physical appearance was that of an older person, or that the victim conducted themselves like a person over the age of 16 or that the ‘victim’ lied about their age.
Further complicating the rape laws is the fact that the minimum sentences for both rape and defilement are both 10 years. Judges use their discretion on the sentencing, looking at circumstances around the crime such as violence, as well as previous convictions of the offender.
Since 1998, the Penal Code has added an extra element to the clouds of confusion around rape laws. If a defendant is found to have spread HIV/AIDS in the commission of rape or defilement, either through knowing his status or reasonably suspecting it, the sentence is tougher.
“Any person who unlawfully or negligently does any act which is, and which he knows or has reason to believe to be, likely to spread the infection of any disease dangerous to life, is guilty of an offence.”
With the complexity around rape, it remains to be seen into which area the young Sebina girl’s case will fall.