Rehoboth’s Attempted Rape Appeal Backfires

Werner Menges

3 June 2011

A REHOBOTH resident who allowed a mentally handicapped girl to perform a sexual act on him was guilty of the crime of rape, it was ruled in an appeal judgement of the High Court this week.

At the end of his trial in the Windhoek Regional Court in October 2008, Richard Armstrong was convicted of attempted rape and sentenced to five years’ imprisonment.

Armstrong had been charged with raping a 16-year-old girl at Rehoboth on March 13 2003. He was 47 years old at the time of the incident.

Not happy with his conviction, Armstrong lodged an appeal in the High Court. He was worse off after the appeal judgement was delivered on Monday, though, with Judge Kato van Niekerk and Judge Elton Hoff deciding that he should have been found guilty of rape rather than attempted rape. The judges further decided to increase his sentence to an effective jail term of six years.

“In my view the conduct of (Armstrong) was despicable,” Judge Van Niekerk commented in the judgement.

During his trial, Armstrong admitted that he had allowed the girl in question to perform a sexual act on him.

The court was told that the girl was mentally handicapped after suffering brain damage due to rheumatic fever. At the age of 16, she had the mental faculties of a child between the ages of two and three, and could not make informed decisions.

Armstrong’s explanation for acquiescing to the sexual act, during which the girl manually stimulated his private parts, was that he had been aroused after she started making sexual advances to him while he was taking her for a drive at the request of her grandmother.

In the appeal judgement, Judge Van Niekerk remarked that the court reluctantly accepted Armstrong’s version that the girl played the leading part in initiating and continuing the sexual act that took place, although this version was improbable. Since the girl was unable to give coherent testimony during the trial, Armstrong’s version was the only one before the court.

Judge Van Niekerk noted that the Combating of Rape Act of 2000 includes “any other form of genital stimulation” in its definition of a “sexual act”. The Act also states that any person who intentionally under coercive circumstances commits a sexual act with another person is guilty of the offence of rape.

Included in the Act’s definition of coercive circumstances are circumstances where a complainant is affected by mental incapacity or other inability that renders her or him incapable of understanding the nature of a sexual act.

Armstrong was not just a passive party during the incident with the girl, but his own testimony indicated that he willingly participated in the situation and that by performing positive conduct he committed a sexual act as defined in the law, Judge Van Niekerk found.

The judge also found that coercive circumstances as defined in the Combating of Rape Act were present.

“The complainant, having the mental age of a child of two or three years old, was clearly incapable of understanding in an informed manner the nature of the sexual act,” Judge Van Niekerk remarked.

Armstrong was also guilty of rape, as defined in terms of the Act, on another ground, Judge Van Niekerk reasoned.

The girl’s grandmother had placed her in Armstrong’s care for what was supposed to be a short period of time, and he accepted the responsibility, the judge stated. Having assumed a protective relationship with the girl, Armstrong had a duty to stop her from initiating inappropriate physical intimacy or to disengage himself from the situation, Judge Van Niekerk said. When Armstrong failed to take such action, his failure to act was unlawful, she found.

Armstrong was represented by defence lawyer Jan Wessels with the appeal. Karin Esterhuizen represented the State.

AllAfrica – All the Time