making her lie down on the mattress after closing the door; The accused, for his part, claims that the victim freely gave her consent to the intervourse and that as such he did not rape her; The Court finds that in this matter, the first Judge misinterpreted the law when he claimed that effectively there was use of violence due to the accused having locked the victim against her will, having ripped off her clothes and undressed her by force; In fact, if the victim's clothes were really torn, the Court notes that they have never been apprehended and made available to the Judge so that he might have verified it; The Court also notes that no medical report was included in the file nor any other evidence capable of proving the violence that the victim was subjected to; In fact, it was ruled that the violence, the material or moral restraint must be of such order that the victim's consent, according to the rules of civil law, becomes irrelevant ( C. G: app, 28 January 1908, jur, State, li, P,215); It is an equally regular doctrine that an accusation of harmful rape of a woman cannot hold unless the following facts are established: That there was a constant resistance and sustained resistance on the part of alleged victim of rape; That there was an evident inequality of her strength compared to the her alleged rapist; That she screamed; That her body shows traces of the violence allegedly committed upon her ( MUYART de VOUGLANS, p. 242 quoted by Michèle Laure RASSAT, the indecent assaults, offenses to public mores, Rape, p.15, in jurisclasseur 1982; Raymond SCREUENS, les nouvelles, 1972 ); The Court is in agreement with Professor Michèle Laure RASSAT that even if these rules do not completely bind the Judge, they provide however, even today, an element of conviction (idem); For all these reasons, there is a serious doubt regarding the material status of the sexual violence of which Madame BWANGA was the alleged victim and this doubt mus benefit the accused; The Court shall thus acquit the accused MBOMBO KEYI John for reasonable doubt; the analysis of the other grounds and elements become thus superfluous; The fees shall be of the responsibility of the Public Treasury; THEREFORE The Court, judiciary section; Ruling after a public and due hearing of both parties regarding the accuses; Having heard the Prosecution; Receives the appeal of the accused MBOMBO KEYI John and declares it founded; Ruling again and doing what the first Judge should have done, declares not established both in fact and in law the accusation of rape as formulated and held against the accused MBOMBO KEYI John for reasonable doubt; it acquits him and releases him from every indictment without fees; Places the fees under the responsibility of the Public Treasury;