Evidence on trial: The line between rape and consent

Lalah invited her friend, James, to her house and gave him a place to sleep. She claimed James raped her. On the other hand, James said it was consensual.[iStockphoto]

On July 1, 2021, Lalah (we have concealed her name) had a male primary school friend visit her house.

She cooked beef and rice, and they enjoyed wine. Since the visitor could not leave owing to the COVID-19 pandemic, she gave him a place to sleep.  

Lalah told the court that he raped her in the middle of the night.

Yesterday, Constitutional Court judge Lawrence Mugambi dismissed her case, ending yet another chapter of her three-year trial.

She had been before the police and then to the magistrate’s court for a criminal trial, and they all did not side with her. Her credibility was at stake as she was on trial.

According to Justice Mugambi, the affidavits could not be enough evidence to decide on either side of the story.

“The petitioner’s counsel opted for an affidavit evidence limiting in hotly contested cases such as the one before the court. The court is left in a limbo with two conflicting positions and is thus unable without the benefit of cross-examination to affirmatively resolve the credibility question,” he said.

Justice Mugambi on Monday observed that the magistrate’s court acquitted the person she accused of rape.

According to him, there was nothing wrong with interrogating her conduct around the man to determine whether she had consented.

The judge said that her conduct with the man before, during, and after the incident had to be considered alongside what she had stated to determine whether she had consented.

“ The conduct was relevant because the issue here was about belief in consent whose decision cannot be reached without analysing a combination of factors. The conduct of both the petitioner and the first respondent was relevant even for the purposes of assessing the credibility so as to reduce the risk of made up charges and unfair prosecution.

“The first petitioner insisted there was a lack of consent while the first respondent, on the other hand, maintained there was consent,” said Mugambi.

Adding that, “It’s one’s word against another, and appropriate conduct was necessary for the corroborative factors that would enable the investigator to resolve the credibility issue.”

He concluded that her case against the Attorney General, Inspector General of police, the Director of Public Prosecution, the man she accused of rape could not be substantiated.

Lalah was battling for her dignity.In their separate responses, they all denied the claims.

The university student was clutching onto hope that justice would finally be on her side. However, in the end, Justice Mugambi dismissed it. He also said that the delay in charging the man was explained.

He also said that a magistrate in lower court had observed that she was not truthful about the incident.

“ The failure of the case also hinged on dishonesty detected by the trail court on the first petitioner. The first petitioner cannot cherry-pick and blame it purely on poor investigations when her own credibility in lodging the complaint was punctured by the trial court,” said Mugambi.

Lalah’s story revolves on a person she knew too well to trust and even allow him to an apartment where she resides. 

James (also not real name) was Lalah’s friend and they knew each other from primary school.

 According to her, James called asking whether she could come to his house so that they could catch up.

In her apartment rented outside the university was some wine. Lalah narrated in her case that he kept looking at the bottle of wine, hence, as a good host, she poured him some for herself and switched on some music.

Meanwhile, since the country was under curfew to tame the spread of the COVID-19 pandemic, the two agreed that he would spend the night and leave the following morning.

She told the court that she steamed some rice and made meat for dinner.

They then had wine and watched a movie. All through, Lalah said, she trusted that he was a gentleman, and his presence in the night would not turn into a nightmare.

According to her, he did the unthinkable in the middle of the night, something which she opened up to her neighbours who recommended that she report to the police.

They locked James inside the house and accompanied her to a local police station that we will not reveal to protect her identity.

At the police station, she stated, the officers recording the incident required her to explain herself in the presence of their colleague.

According to Lalah, the officers ridiculed her for allowing a man into her house.

“One of the police officers present said that he did not expect women from her ethnic community to be dressed the way she had dressed and that she was raped because of her inappropriate dressing,” she narrated.

Justice Mugambi said that he would have found the officers’ behaviour unbecoming if the case had been proved.

The court heard that the investigating officer told her that police had no way of tracking James. The officer hatched a plan, and she baited him by inviting him to her house within two weeks.

On July 1, 2021, James came to her house and was arrested but was not produced for charges the following day.  Lalah narrated that when she inquired, the officer informed her that Ruiru Law Court was being fumigated.   

According to Lalah, James’s family held a meeting with her family, apologised, offered Sh 70,000 for her silence.

Lalah said James raped her. He on the other hand said it was consensual. Courts have dismissed her case. Was it rape or consent?

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