State v. Bechu

State v. Bechu, [1999] FJMC 3 (Fiji).
Download Judgment: English
Country: Fiji
Year: 1999
Court: Magistrate's Court of Fiji at Levuka
Health Topics: Sexual and reproductive health, Violence
Human Rights: Right to bodily integrity, Right to life
Tags: Rape, Sexual abuse, Sexual assault, Sexual violence, Violence against women

Filipe Bechu was charged with the offence of rape. The Penal Code states that “Any person who has unlawful carnal act with a woman or girl, without her consent, or with her consent if the consent is obtained by force or by means of threats or intimidation of any kind, or by fear of bodily harm, or by means of false representations as to the nature of the act or in the case of a married woman, by personating her husband, is guilty of the felony termed rape”. The accused pleaded not guilty to the rape charge and told the court that the victim was his girlfriend. The hearing was set but the complainant was not present. She did not appear in court for almost two years.

The court declared that although it had the inherent powers to acquit the accused pursuant to Section 210 of the Criminal Procedure Code regardless of the complaint's absence, it decided that the defendant was guilty. The reason to hear the case was the seriousness of the offense per se and its prevalence in rural areas. The Court affirmed that the complainant had already given her testimony in Court and she knew the accused well so the question of identity was unnecessary in this case.
The Court found the accused guilty and declared in its sentence that "Women are your equal and therefore must not be discriminated on the basis of gender. Men should be aware of the provision of the 'Convention on the Elimination of all forms of Discrimination against Women' (CEDAW), which was ratified in 1981. Under the Convention, the State shall ensure that all forms of 'discrimination against women' must be eliminated at all costs. The Courts shall be the watchdog with this obligation. The old school of thought, that women were inferior to men, or part of your personal property, that can be discarded or treated unfairly at will, is now obsolete and no longer accepted by our society"

The victim, no doubt had an intercourse with the accused on the night in question.
Such intercourse, with the accused person was obtained, without her consent. Even, if she had consented, to intercourse as appeared to be the case in accused's belief, being his former girl friend, the definition of 'rape' under Section 149 of the Penal Code falls squarely against the accused's belief, who was quite drunk, at the time of the alleged incident.
In this context a man is reckless where he is aware that the other party may not be consenting but proceeds to have intercourse with the other party either knowing that that party was not consenting or not caring whether the other party consented or not.

I have come to the conclusion, after carefully considering the fact of this case that the accused was reckless in committing this offence, because of his state of drunkenness, he is therefore found guilty and convicted as charged.