Medical evidence is often crucial evidence in proving an accusation of rape. It is used to prove the ingredient of carnal knowledge by establishing if there is evidence of penile vaginal intercourse. Such evidence is got by the presence of injuries, however subtle.
However it most cases of rape this evidence is hard to establish as genital injuries are an exception rather than the rule in rape. Sexual intercourse, by nature, is meant to be non traumatic. The term rape conjures up the misleading image of brutal forceful sexual intercourse.
The recovery of spermatozoa, whether in the genital tract or on the body or clothing of a victim of rape is strong corroborative evidence. It is not only evidence of recent sexual intercourse but will link the perpetrator to the offence if a DNA test is carried out. The recovery of a perpetrator’s DNA, especially under the fingernails of the victim, is also important medical evidence
Extra-genital injuries are strong evidence that the victim of the rape did not consent to the act as is the evidence of finding any substance that could have impaired the mind of the victim. Extra-genital injuries may include injuries resulting from forceful restraint and strangulation. Alcohol and other drugs, recovered from blood and urine, are strong proof that the victim did not consent to the act.
In 2005, when retired army officer Dr. Kiiza Besigye was accused of and arraigned before the Criminal Division of the High Court of Uganda for the offence of rape, there was no medical evidence to back the allegation. The offence was alleged to have taken place in month of November 1997 at Luzira in Kampala where it was stated that he had unlawful sexual intercourse with a one Joanita Kyakuwa, a university student, without her consent.
In a strong and forceful submission, the Deputy Director of Public Prosecutions told court that while in such cases it is usual to rely on medical evidence on the question sexual intercourse, the lack of medical evidence should not be interpreted as meaning that sexual intercourse did not take place. Lack of medical evidence in this particular case was explained by the fact that the victim did not report to police. The victim was by then living under the roof of the accused and was dependent on him for education. The accused had also threateningly warned her never to reveal the incidence to anyone.
On lack of consent the learned Deputy Director of Public Prosecutions submitted that the victim reported the incidence to the house help immediately after it happened. This was corroborated by the house help in her evidence in court. The Deputy Director stressed the fact that the whole case here depended on the credibility of the witnesses at the scene and he invited the court to find the evidence of the victim and the house help incredibly credible. The Deputy Director also submitted that the victim gave a graphic account of what happened and was not vindictive, looking at the accused as her father. He submitted that the accused had given the victim more that bread and butter.
The Deputy Prosecutor paused a philosophical question at this point in his submission; it was to the effect that why would a witness, who appreciated what the accused had done for her, give a false story against him. To the judge a quick answer to the question would have been that Judas Iscariot betrayed his master with a kiss and for a mere thirty pieces of silver.
The house help, a one Aisha, had worked for the accused, both in his home in Luzira and at his farm from 2001. It was her evidence that during that in 2001 police went to her and asked her about the incidence between the accused and victim. She declined to tell them anything about the incidence out of fear. The police came another time asking her about the same subject but she did not oblige. In the year 2004 she was arrested by the security officers and taken to some unknown place and tortured. This time she succumbed and told them what she knew about the case.
The State put the house help in what may be described as witness protection program. She was kept in, what her son would later describe as, a safe-house and the State promised to provide her with facilities to start her own business. According to her son, before testifying, her mother went to Entebbe with the Director of Criminal Investigations and was assured that if she did a good job, she would get unlimited security, a house in the city and another one in the village, start a cattle farm and educate her children.
The learned Deputy Director submitted to court that arrest of the house help in the course of the police investigations should not attract adverse attention. He submitted that her arrest was not an act of intimidation but an act to ease her situation. On the property given to her after she had been humiliated into submission, the Deputy Director submitted that this was mere facilitation; that the State had uprooted her from where she was living and it was, therefore, the moral responsibility for the State to resettle her.
Lawyers acting for Dr. Kiiza Besigye submitted that the charge against the accused was sheer fabrication from the beginning to the end. To the lawyers the case was nurtured and nursed at the State House and taken for implementation at the Criminal Investigations Directorate and it was now open to court to dismiss it and acquit the accused. To the lawyers the prosecution case was so discredited and unworthy of any belief so much so that they, (the lawyers) did not deem it fit to ask Dr. Kiiza Besigye to defend himself or call any witnesses.
To be continued...
