Senior resident magistrate Elijah Blackboard Dazilikwiza Pachalo Daniels has braved the odds and acquitted 18-year-old Charles Gondwe of defilement,on the basis that the State failed to prove its case against the accused.
According to court records, Gondwe was in a sexual relationship with a 15-year-old girl, contrary to Section 138(1) of the Penal Code. He pleaded guilty, but entered a statutory defence.
Said the Magistrate: “In the prevailing circumstances, the State has failed to establish the offence of defilement against the accused person. Consequently, I find the accused not guilty of the offence of defilement contrary to Section 138(1) of the Penal Code. Accordingly, I proceed to acquit the accused person from the charge of defilement contrary to Section 138(1) of the Penal Code.
“The young man is a free man as he stands, innocent in the face of the law.”
The court said evidence before it showed that the girl told the boy that she was 17 at the time she had sexual affair with him, which she confirmed in court.
Again the girl told the court that she had two other boyfriends before, who also had carnal knowledge of her.
“One would note that the accused person already knew that he was not the first person to have carnal knowledge of the victim. The sexual behaviours of the victim were in the knowledge of the accused person and it became apparent that the young and tender age of the victim did not stop her sexual cravings for boys.
“Needless to say, the victim further confirmed that a boy known as Chisomo had carnal knowledge of her before the accused person had his share of the forbidden fruit and she also confirmed that she also had [another] boyfriend only known as Tiyamike, who also had his day with her in bed. This is sad,” said Daniels.
The magistrate noted that much as the issue of consent does not matter in defilement cases, it would be grave injustice to the justice system to give a blind eye to the available evidence of mistaken belief of the girl’s age.
He said her conduct was reckless when she lied to the boy.
“Actually, the record shows that she told the accused that she is 17-years-old, and she appears to have discussed with the accused person about her sexual past prior to her sexual encounters with the accused person.
“I find that the accused person was mistaken as to the exact age of the victim mainly from the conduct of the parents of the victim and also the unmatched sexual conduct of the victim, which made it possible for the accused person to mistakenly believe and reasonably so, in my view, that the victim was not of the age of 15, but 17 as she claimed.
“Her sexual experience outlived her age and she made a representation to the accused person as regards to her age which the accused person had no reason to doubt as to its veracity,” said Daniels.
He warned that courts will not be convicting people based on public opinions, and the law will not involve itself in what he called “judicial activism”.
Daniels also told the court that the judgement does not mean that he downplays the importance of the protection of child rights, but that inequalities in proper child upbringing by parents have severe consequences.
