Regarding the existence of a victim, the law also protects an underage girl; the law also
protects a man and a girl and children; in the present case, the victim is an underage girl and
thus this element is also confirmed and awarded to the accused.
Regarding the lack of consent, it follows from the underage status according to the will of the
legislator. Finally, by having sexual intercourse with a girl that he knew well was underage, the
accused has confirmed this moral element awarded to him. Every constitutive elements of the
crime of rape with resort to violence having been confirmed and awarded to the accused
SALEH, the Court found this incrimination established both in fact and in law and sentenced
him according to the law Nº 06/018 of the 20th July 2006 regarding sexual violence and
modifying the Penal Code Book II.
However, the Court shall take into account the following extenuating circumstances: the
accused is a first offender, without any known prior cases; he demonstrates a willingness to
change; the victim became legal of age in his house and became his wife and the mother of
his child; his sentencing to a prolonged prison sentence carries the risk of imposing on the
victim and the child a life of uncertainty because they are at present under the care of the
accused, that supports them through his work as a mechanic. As to the damages, the Court
finds that the accused's behavior still caused real harm to the victim's family, namely the
dishonor caused by people's mockery as well as the loss of their reputation of good educators
in the neighborhood due to rumors; the Court shall allocate damages and interests on an
equity basis.
THEREFORE
The Court, judiciary section
Ruling after hearing both parties,
Having heard the Prosecution,
Receives the accused's appeal and declares it partially founded; nullifies the previous
judgement in all its provisions; ruling again and doing what the 1 st judge should have done,
declares established both in fact and in law the crime of rape with resort to violence awarded
to the accused; sentences him with the admission of extenuating circumstances to 2 years
and 8 days and to a fine of 100.000 Congolese Francs, to be paid within 8 days or face 15
days of detention; sentences the same accused to paying the equivalent in Congolese Francs
of the amount of 800$ in damages and interests to the plaintiff MBEHERWA SHEMWENGE,
the victim's father; sentences him at last to paying half the cost of the proceedings within the
legal deadline or face 14 days of detention, the other half being placed under the
responsibility of the Public Treasury;
Thus pronounced and registered by the Appeals Court of Bukavu in its public hearing in Uvira
on the 11th September 2010, in which were seated the Magistrates LAZARE BAMIDE
WAFOLE, President of the Chamber, VICKY TSHBOLA KABALA and GABRIEL MULE
MADE, advisors, in the presence of Mr. NGWAPITHI MOKEMO, with the assistance of
BADETTE KWANDJO, the Court's Clerk.
Clerk
Advisors
President of the Chamber