HIGH Court judges of appeal have said mentally-ill people also enjoy sex in their own right.
The court said it could not be dispelled, where there was no evidence, that the mentally-ill are incompetent to consent and appreciate the nature of the act.
High Court judges Justices Nyaradzo Priscilla Munangati-Manongwa and Siyabona Musithu said this in their judgment, while releasing a man convicted of rape.
Mtindi Zidyengi had been convicted by a lower court for raping a 33-year-old mentally-ill woman.
Zidyengi (39), who was unrepresented, pleaded guilty to the charge of rape.
The matter was, however, referred to the High Court for review in terms of section 57 of the Magistrates Court Act.
The judges received Zidyengi’s review application on June 7 last year and released him on June 23 on warrant of liberation on the basis of the review.
Justice Munangati-Manongwa, in her judgment supported by Justice Musithu, said while the law sought to protect the mentally ill, great caution should be exercised not to dismiss their sexuality without adequate medical evidence.
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She said mentally-ill people also need to explore their sexuality without being taken advantage of.
“The notion that persons with mental conditions cannot enjoy sex in their own right needs to be dispelled where there is no evidence that they are mentally incompetent to consent and appreciate the nature of the act,” she said.
The judge said sexual and reproductive health rights were not a preserve for those without challenges.
“Such issues constitute an important component of the right to enjoyment of quality of life for each individual,” she said.
Justice Munangati-Manongwa said the alleged victim was a good example of how a certain degree of protectionism can suffocate and impede the enjoyment of life by the mentally ill.
According to section 65 of the Criminal Procedure and Evidence Act, the charge Zidyengi was facing was that of engaging in a sexual act “with a mentally incompetent adult person”.
Zidyengi had a relationship with the woman who is on medication for the condition.
The court heard that on one instance, the woman’s mother saw them having sexual intercourse, but did not report the matter.
The mother reportedly witnessed another sexual encounter and got concerned, but did nothing.
The court heard that the woman started refusing her medication, indicating that she was pregnant and did not want to endanger the child.
She reportedly reported her mother to the police for forcing her to take medication.
The mother was summoned and she revealed the sexual encounters, leading to Zidyengi’s arrest and conviction.
The lower court ruled that Zidyengi took advantage of the woman.
The judge, however, said she raised issue with the trial magistrate by enquiring if the conviction was proper in the absence of expert evidence that the complainant was incapable of consenting.
She said the doctor’s report stated that she has a history of hallucinating, but was well oriented, had average abstract thinking, good judgement while her intelligence was rated as good with the conclusion that the complainant could follow court proceedings.
She also considered evidence showing that the woman had lucid moments, refused to take tablets, reported her mother to the police, while the State outline indicated that she was consenting to the act and was Zidyengi’s girlfriend.
“I queried the propriety of the conviction when no expert evidence was called and the court did not even assess the complainant for it to give its value judgment.
“The accused person could not have been able to appreciate the technical aspects of the offence when he pleaded guilty to the charge,” the judge said.
In the absence of expert evidence, she said, the trial magistrate should have called a psychiatric nurse to clarify issues rather than formulate opinions or beliefs where a medical condition was concerned.
The judge said the issue of mental incapacitation dealt inter alia [among other things] with the person’s ability to consciously make a decision fully appreciating the consequences incumbent.
“She could understand court proceedings and she was or is of average intelligence and her judgment and intelligence were rated as good.
“These comments by themselves pointed to an individual who was not always incapacitated by her condition but had lucid moments, is of average intelligence and her judgment rated as good,” she said.
Justice Munangati-Manongwa said the report should have alerted the court that there was a possibility of the complainant having been conscious of her decision and the decision to protect her unborn baby.
She said from the interaction she had with the trial magistrate, it was clear that she founded her conviction on speculation lacking evidential support, which was a cardinal sin which any court should not commit.
“Where a medical report has been provided the court needs to thoroughly and carefully read and consciously consider the contents thereof before proceeding to make conclusions.
“Such a course enables the court to make fully informed decisions, hence doing justice to the case.
“Given the criminal sanction that accompanies a conviction on this charge, any tardiness in handling such a matter can lead to great prejudice to an accused person when incarcerated.”
She said the Constitution of Zimbabwe also provided that every person had inherent dignity in their private and public life and the right to have that dignity respected.
“Hence those who suffer from mental challenges should enjoy that right during their lucid moments as the complainant in casu [in this case],” Justice Munangati-Manongwa said.
She also cited the rights to equality and non-discrimination, which include the right not to be treated in an unfairly discriminatory manner on such grounds as disability or economic or social status.
Justice Munangati-Manongwa said it was imperative to note that the rights to dignity, privacy and not to be discriminated against are incorporated in the Convention on the Rights of Persons with Disabilities to which Zimbabwe is a signatory.
“This resonates with what the complainant in casu did being able to make a decision that she was not going to be forced to take medication while pregnant.
“Thus, the unwarranted restriction to enjoyment of sex, entering into a relationship with a person of the other sex may border on infringement of rights of the mentally challenged persons given their right not to be discriminated upon on the basis of disability,” Justice Munangati-Manongwa said.
