A 35-year-old man from Hochfeld in the Okahandja district was convicted of rape on Friday by Regional Magistrate Selma Sibeya in the Windhoek Magistrate’s Court.

Sibeya convicted Andreas Mouton on one count of rape. He was charged with raping a 30-year-old woman who has the mindset of a three-to-five-year-old. Mouton pleaded not guilty and proffered a defence of consensual sexual conduct. 

He claim that he and the victim, who may not be identified, were in a relationship for the past two years before his arrest. He was found having intercourse with the victim on 20 February 2021 at a farm near Hochfeld. Evidence led during the trial, however, established that the victim was crying while the accused raped her. 

A report from a clinical psychologist, Ndinelao Kaxuxuena stated the complainant is not able to consent to a sexual act as she is like a child and requires praise for her to talk.

“I hold the view that the State managed to prove that the accused committed a sexual act with the complainant under coercive circumstances, which constitutes rape,” the magistrate said.

She further said when the complainant was asked about the rape, she appeared sad and did not want to talk about it. Kaxuxuena testified that she believes the complainant suffers from post-traumatic stress disorder. The psychologist testified that the complainant could not give a coherent account of the crime, but she did say she did not want to see the accused again as she is afraid of him.

 The magistrate accepted that the complainant did not testify at the recommendation of the psychologist, who said the woman would not be able to understand questions put to her. The magistrate also found no negative inferences from this. However, she said, corroborated evidence shows that the accused had sexual intercourse with the complainant, but what must be established is whether it was with consent.

Evidence presented during the trial showed that the complainant is like a child who must be bathed, fed, and dressed by her guardian, the magistrate stated. She further said even the accused admitted knowing the complainant was mentally-impaired, although he claimed that she was “normal” sometimes. However, she said the evidence of the psychologist and the complainant’s guardian that the complainant had the mental capacity of a three-to five-year-old, was credible. 

The magistrate said the accused was not a credible witness. He tried to demonstrate that although the complainant was mentally-impaired, she at times behaved normally and could consent to sexual intercourse.

While there is no onus on an accused to prove the truthfulness of his explanation, the magistrate said she is satisfied that his explanation is false beyond doubt, and she rejected it outright.

-rrouth@nepc.com.na