GROUNDBREAKING HIV RAPE PROSECUTION CRUMBLES
By Werner Menges, Windhoek

October 16, 2003 – (The Namibian - Windhoek) THE first trial in Namibia of a man accused of raping while knowing he was HIV positive, ended with a not guilty verdict in the High Court in Windhoek yesterday.

The 40-year-old suspect had been in custody since December 2001 before he was acquitted by Judge Elton Hoff yesterday.

Judge Hoff found that the woman who accused him of rape and kidnapping was an "unimpressive" and unreliable witness whose evidence was not corroborated in several respects and was not sufficient to lead to a conviction.

"Having regard to the material contradictions and discrepancies in her evidence, as well as the inability to explain the failure why three State witnesses were unable to observe visible injuries (which the complainant claimed she had on her face), the complainant in my view can only be described as an unreliable witness," Judge Hoff said.

He added that although the suspect's version of events was also unsatisfactory in some ways, it could not be said that the suspect had been a liar and that his version should be rejected in its entirety.

The suspect and his younger brother were charged on counts of rape and kidnapping.

The younger brother was however found not guilty at the end of the prosecution's case earlier this year.

It was alleged that they kidnapped a woman from a farm in the Omaruru district on December 5 2001 by forcing her to accompany them to another farm.

At the second farm, the brother, who was yesterday found not guilty, forced the woman to sleep with him and raped her during the night, it was charged.

It was further alleged that he was HIV positive at the time - and that he knew it.

Under the Combating of Rape Act of 2000, a person who rapes somebody while knowing he has a serious sexually transmitted disease faces a minimum sentence of 15 years' imprisonment with a first conviction, or a 45-year term with a second conviction.

However, a nurse who took a blood sample from the 40-year-old suspect during November 2001 testified that she informed him of the result of his HIV test - in which it was found that he had the AIDS virus - only in January 2002, after he had allegedly committed the rape.

He denied that he had committed the crime.

However, when he first pleaded to charges, the record of the proceedings in the lower court indicated that he told the court that he had sex with the woman, but that it was with her consent.

He subsequently denied this.

Under cross-examination in the High Court, the court interpreter who translated what the suspect had said in Damara-Nama into English testified that the words which the suspect had used were that he had "slept with" the complainant, Judge Hoff recounted.

The interpreter said that in Damara-Nama this is normally understood to mean that a person had sex with somebody.

However, the words used did not exclude the possibility that the suspect had told the lower court that he and the woman shared a bed on the night in question - as he had also testified during his trial - without having had sexual intercourse, Judge Hoff observed.

Tousy Namiseb represented both suspects, on the instructions of the Legal Aid Directorate.

Sharon Blaauw prosecuted.

From: http://allafrica.com/stories/200310160552.html