Whereas the groping of the breasts of the victim is
certainly an act with sexual connotations; that even if it has
been proved that had it not been for the resistance of the
victim and the intervention of the above-mentioned witnesses,
the accused would not have desisted; the investigation of the
case did not establish that the actions of the latter clearly
tended to sexually penetrate the victim; that therefore it is
necessary to rule out the hypothesis of attempted rape;
Whereas, however, the same actions of the accused
may be classified in a different way, in this case as an
indecent assault; whereas, according to Article 533-2 of the
Penal Code, "Any act of a sexual nature contrary to morality
committed directly and intentionally on a minor or with
violence, coercion or surprise on an adult constitutes an
indecent assault;
Whereas the acts of groping the breasts of the victim
committed by the accused are of a sexual nature; whereas
these acts, which are contrary to the morality of Burkinabè,
in that they shock social morality, were committed by means
of coercion, as evidenced by the circumstances of the acts
described above;
That although the accused were minors at the time of the
events, an analysis of the events suggests that they
nonetheless acted with discernment; that by screening the
victim and her sister and waiting for them to isolate
themselves before attacking them, they testified that they had
previously thought carefully about their act, from which they
acted with discernment; that it also emerges from their
statements made at the bar that they acted deliberately and
with full knowledge of the reprehensible nature of their acts;
That, in short, the elements constituting an indecent assault
are present; that it is appropriate to reclassify the acts of
attempted rape initially charged against the accused as an
indecent assault, to find them guilty of it, and to file a
conviction against them;
2 GUILT OF S.H
Whereas, like T.D and O.E, S.H is accused of
attempted rape on her twin sister, O.W.N, rather than on
O.W.N, he does not refute the charges either; that he states
that on the day of the events, while he was in the company of
his friends named D.S aka Baba, O.E and Idrissa, they saw
the victim and her twin sister coming out of the dancing bar
"Galxi plus", that they accosted them and teased them until
they returned inside the bar; that shortly afterwards the same
girls came out to relieve themselves this time around; that it
was at this moment that he and his friends followed them to
the scene of the events; that he declares at the bar of the
Court that he is one of those who forcibly restrained and
sexually touched O.W.N;