Thirdly;
The mere presence of the plaintiff’s sperm in his pants – prosecution evidence no. (3) – should be
interpreted as a normal thing and not a proof that an act of sex had happened against the victim, and
reviewing the evidence and the testimony by the defense witness affirming that he brought the accused
from Sawakin and was with him all along, so, perhaps the accused had had a wet dream, bearing on
mind that the prosecution’s evidence no (3) – the accused clothes – were taken from him on the next day
after the incident for running the texts, and so, this evidence too, is shrouded in doubt, and negates the
hypothesis of his having sex with the victim. And, prosecution’s document (2) negates the presence of
sperm in the accused’s penis when examined.
Fourthly;
The fact that the accused was with the victim in a room at sunset does not constitute an evidence of
sexual harassment or abuse on the victim, as harassment is a physical act that requires not only the
presence of the accused with the victim in a room but proving that a movement or an attempt or
touching or signaling to arouse sexual desire.
Fifthly;
Facts and evidence indicate that the victim had been stalked by others before entering the house, a
matter that raises the assumption that the sexual assault might have been committed by those
individuals, in which case, doubt should be interpreted in favor of the accused as the basic assumption is
innocence.
In my opinion, the conviction is right under Article (45) paragraph © of the Juvenile Code for the
following reasons;
Firstly;
Undoubtedly, Attorney Maaz Hassen has exerted considerable effort and comprehensively analyzed the
evidence and the facts to cast doubt over the evidence and to justify the interpretation of doubt in favor
of the accused. However, we disagree with him, and rather, agree with both Criminal Court and the
Court of Appeal
Secondly;
In the beginning, we have to specify the meaning of the phrases (sexual harassment and sexual act) for,
the legislator, although did not define either of the two phrases above, still, the legislative objective of
these two phrases can easily be inferred from the articles of the Criminal Code of 1991, and from sharia
jurisprudence, or from the jurisprudence at large, hence, these phrases signify the following;
(1)
From a sheer legal view;
Notably, the Criminal Code of 1991 has introduced these phrases in Article (151) criminal,
the same as in the Juvenile Code of 2010, that the crime of obscenity means every act
committed by an assailant and infringing propriety of another person, or to have an act of sex
that is short of adultery or sodomy, and this is a general meaning to what an assailant does
and that is against propriety, or constitutes a kind of sexual act.