Court backs DPP on charging child molesters with rape

KAMPALA - The Court of Appeal has in a landmark judgment ruled that minors (girls aged below 18) can be victims of rape and it is thus within the powers of the Director of Public Prosecutions (DPP) to charge the suspects with either rape or defilement.

In a landmark judgment delivered on Friday (May 30), justices Christopher Gashirabake, Dr Asa Mugenyi and John Mike Musisi noted that the Penal Code Act does not exclude a girl from being a victim of rape.

The court’s decision implies that a girl can be a victim of both defilement and rape as per the Penal Code Act.

The decision stems from an appeal by Christopher Ddamulira, who was convicted of raping a 17-year-old girl. He is now serving a 28-year jail term as punishment.

Ddamulira had argued that charging him with rape instead of defilement was an abuse of powers by the DPP.

Upholding his conviction and sentence, the justices said his appeal lacked merit as he had not denied having sexual intercourse with the teenage girl.

Drawing from Section 110 of the Penal Code Act that provides for the offence of rape and the victims of the crime to include both a woman and a girl, the justices said it implies that girls aged below 18 can also be raped.

“The omission to exclude a girl from being a victim of rape, whether accidental or deliberate, meant that a girl could be both a victim of rape and defilement,” the justices ruled.

They said it is within the powers of the DPP to decide which offence to prefer against a girl defiler, depending on the circumstances of the case.

Justifying their decision, the justices said courts are required to apply the law as it is because they cannot usurp the powers of legislature.

“As the offence of raping a girl is still alive under Section 110 of the Penal Code Act, the appellant (Ddamulira) cannot argue that it is ambiguous."

The justices noted that before defilement was made an offence, sexual predators would be charged for raping an adult woman as well as a girl below 18 years and when the offence of defilement was introduced, the word girl was not removed meaning that girls can be raped.

'Good decision'

The decision came barely two months after the Office of the DPP faulted High Court Judge David Batema for discharging a man who had been indicted with raping a girl below 18 years.

Justice Batema wanted the DPP to amend the charge to simple defilement, which attracts a jail term of 15 years.

Defilement of girls below 18 years is provided for under Section 116 of the Penal Code Act, and it only attracts a maximum punishment of life imprisonment if there are aggravating factors such as infecting the victim with HIV, being a guardian, and the victim having a disability.

Commenting on the decision, Irene Nakimbugwe, the deputy spokesperson of the Office of the DPP, said the decision is a progressive one.

“It is a good decision, and this is the argument we as ODPP have always put forward. Some people think that a girl cannot be raped but they are wrong,” she said.

She, however, said not every man who engages in sexual intercourse with a child below 18 years will be charged with rape, as this will depend on the circumstances of each case.