Legal principles used in Dr. Besigye’s rape trial

That the victim of the rape was a woman or a girl

That the good doctor had carnal knowledge of the complainant, a one Joanita Kyakuwa, a university student under his care

That the complainant did not consent to the act

That the doctor was the ravisher

READ: Revisiting the case in which Dr Kiiza Besigye was indicted for rape

Submissions in the rape trial of Dr. Kiiza Besigye

12 years later, DPP drops rape appeal against Besigye

The law defines rape as the carnal knowledge of a woman or girl. This interpreted literally means only a woman or girl can be raped. And conversely a man therefore cannot be a victim of rape. And carnal knowledge means insertion of the male organ into the female organ and nothing more and nothing less. It is not necessary to prove the completion of the intercourse by the emission of seed, but the intercourse is complete upon the proof of penetration. It is not necessary to prove the rapture of the hymen in a case of rape.

On consent it must be proved that the rape was committed on the complainant by force and without her consent. The prosecution must prove either that the girl physically resisted, or if she did not, that her understanding and knowledge were such that she was not in a position whether to consent or to resist. Consent for a sexual act must be given freely, willingly and when the women or girl is in full possession of her mental faculties. It must also not be obtained fraudulently such as by misrepresentation of the act or impersonation.

In a case of rape, courts attach great importance to the fact that a complaint was made by the complainant shortly after the alleged offence. Particulars of such a complaint may be given in evidence in so far as they relate to the accused and courts may use this as evidence of the consistency of the conduct of the complainant with her evidence given at the trial. Such a complaint cannot, however, be regarded as corroboration of the story of the complainant.

If the complainant concealed the rape for any considerable time after she had the opportunity to complain, and if the place where the act was alleged to have been committed were such that it was possible that she might have been heard, and she made no outcry, these and the like carry a strong but not conclusive presumption that her testimony is false or feigned.

Though corroboration of the evidence of the complainant is not essential in law, it is, in practice always looked for and it is the practice for court to warn itself against the dangers of acting upon uncorroborated testimony, particularly where the issue is consent or no consent. Independent evidence of the distressed condition of the complainant soon after the alleged offence may amount to corroboration.

The onus of proof beyond reasonable doubt lies with and stays with the prosecution throughout the trial. Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the guilt of the accused person. If, at the end of and on the whole of the case there is reasonable doubt, created by the evidence given by either the prosecution or the accused person, the prosecution has not made out the case and the accused person is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the accused person is part of the common law of England and no attempt to whittle it down can be entertained.

Courts have also warned themselves of the phrase beyond reasonable doubt. To warrant an acquittal, the doubt must not be light or capricious but must be such a doubt as, upon a calm view of the whole evidence, there is no conscientious hesitation of the mind, not preoccupied by prejudice or subdued by fear.

Where a witness is shown to have made a previous statement inconsistent with his or her evidence given at trial, court should not merely direct itself that such evidence should be regarded as unreliable but should also direct itself that the previous statement, whether sworn or unsworn, does not constitute evidence upon which it can act.

“Testis unus testis nullus” is a Latin legal phase that means that one witness is no witness. According to this rule the uncorroborated testimony of one witness should be discounted because it is deemed to be too unreliable to establish a fact. In the case against the good doctor, prosecution produced six witnesses but to the judge there was only one witness whose evidence was vital to the outcome of the case and the witness was the complainant Joanita Kyakuwa. To the judge, the direct evidence of the complainant had to be tested and weighed like any other evidence and it could by no means be laid down as a general maxim that the assertion of two witnesses is more convincing to the mind than the assertion of one witness and that “Testis unus testis nullus” is no longer good law or good sense, let alone practice.

What they say...

Prove guilt.

The onus of proof beyond reasonable doubt lies with and stays with the prosecution throughout the trial. Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the guilt of the accused person.

To be continued