By Anne Mugisa
The New Vision
February 26, 2010
http://www.newvision.co.ug/D/8/30/711262
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| Over time, the court has decided on a number of high-profile cases. In a series, Saturday Vision looks back at some of the attention-grabbing cases that visited the court room. |
The defilement suspect was a Catholic priest. The alleged victim was a 16-year-old former altar girl at various churches including Lira Cathedral and the crime was reportedly committed between March 16 and 18, 2001.
The Rev. Fr. Ambrose Owiny was indicted after the girl, the niece of another priest, revealed that she had been at his house and they had had sex. The girl had left school, St.Theresa Girls’ Secondary School in Masindi, on March 12, 2001 for presidential elections.
The day after the elections, her father escorted her to Lira taxi park, where she was supposed to board and return to school. As soon as her father left, the girl disembarked from the taxi and went to Loro Core Primary Teachers’ College to see a friend.
The friend was a sister to Fr. Ambrose Owiny. For two days the girl stayed with her friend and on March 16, 2001, the two allegedly went to the priest’s home in Lwe-Ikwo village, Loro-Odike.
On March 18, the girl was seen near the residence of her uncle, also a priest, in Atapara parish, away from the priest she claimed was her lover. The uncle was suspicious as to why she was not in school and summoned her mother. The two interrogated the girl and she revealed that she had been with Fr. Ambrose and that they had had sex at his residence. The uncle and the mother immediately reported the matter to the Police and the priest was arrested and charged with defilement, which he denied.
THE TRIAL
During the trial, the girl testified that she and the priest had been lovers since December 2000. She said they had been exchanging love letters and photographs. She produced a letter and photograph to prove her claims. But these items had not been given to the Police during the investigation. She produced them in court as she testified.
Court also heard that when the arresting party went for the priest, he ran and hid in a room at the Bishop’s residence. According to the prosecution, this was indicative of his guilt. The court also heard that the Bishop and other people had tried to frustrate the prosecution of the priest.
It also heard that the priest entered into negotiations with the girl’s family so that they could settle it out of court.
But the defence lawyers attacked the girl’s evidence, saying she had made several contradictory statements before the court.
They also said the girl had been lying about her sex life. In her first Police statement she denied having sexual intercourse with the accused, yet later she testified that she did.
In a Police statement, she stated that she slept at the home of the accused twice, yet in court she testified that she slept in Loro on March 16.
The defence argued that the girl had been engaged in sexual encounters with several boys of Loro PTC. Thus if there was any evidence that she had lost her virginity, the priest was not responsible.
They further argued that on the date the priest was said to have had sex with the girl, he was away in Ngetta and not at Loro, where he was accused of committing the crime.
A medical examination revealed that the girl had had sexual intercourse within the previous seven days, yet the priest had been accused of defiling her three weeks before.
The defence used this to argue that the girl had been having sexual intercourse with someone else even beyond the time the priest was accused of defiling her.
JUDGEMENT:During the trial, Justice Opio Aweri said the court had to establish that on the said date the girl was below 18 years of age, that she was involved in unlawful sexual intercourse and if so, that the accused was the culprit.
The Judge noted that since the court was not witness to the case, the prosecution had a duty to prove its case against the accused and that the victim’s evidence would be very crucial.
The Judge, however, noted that there were loopholes in the girl’s testimony, which proved that she was not a truthful witness. The court could not allow the letter and the photograph as evidence, saying the items had not been taken to court through the chain of evidence. They were just brought in during trial and therefore not permissible.
The law requires that all forms of evidence presented in court should go through Police investigations. The items (letter and photo), therefore, should have been given to the Police during investigations. The Police would have subjected the exhibits to forensic examination to see if they were authentic. For instance the Police would give the letter to a handwriting expert to ascertain it was from the accused priest.
In court’s reasoning, the letter could have been a forgery. Court also ruled that as much as the girl had the priest’s picture, she could have acquired it from anywhere, not necessarily from him.
Court also rejected the girl’s parents’ claim that the house where the priest slept with her had been demolished to erase evidence. To make matters worse, the Police officer who went to the alleged scene of crime could not tell whether the house existed at the time or not. “First of all the good officer visited the scene very late, between 7:00pm and 9:00pm and it was raining. The officer did not go out to see the alleged house,” Justice Opio Aweri noted. “There was also conflicting evidence as to the demolition. While some witnesses said it had been demolished, others said it was standing and yet others said only the roof was removed.”
Regarding the accused priest’s conduct, the judge noted that running away made him appear guility. But during the trial, the priest said the arresting party who included the girl’s brother, were so hostile and aggressive that the Bishop told him to lock himself up in one of the rooms at his residence.
According to the judge, the priest’s testimony was not challenged and it was a plausible explanation of why he hid. “Where a suspect feels his life is in danger, he has the right to behave in such a way that can protect his life. It comes by instinct,” Justice Aweri ruled.
The priest also denied negotiating with the girl’s people for an out of court settlement and the judge believed him. But the judge noted that a number of people, including the Bishop, had tried to frustrate the accused’s prosecution just because he is a priest.
“Priests are like ordinary citizens who should not be treated above or below the law if they are suspected of any crime. It was, therefore, bad for the Bishop to hold the accused in his residence when he was wanted by the Police.
“I am glad the officer who was used for that purpose was reprimanded accordingly. Law should take its course in all circumstances without fear or favour. I do commend the parents of the victim for following this case up to the end,” Justice Aweri noted.
The judge noted that the girl had refused to commit herself to the dates when she was sneaked into the Bishop’s residence to have sex with the priest. She also denied in her first Police statement that she had had sex with him, saying she had been forced to make the claims by her sister. The court pointed out several other contradictions and threw out her evidence.
The court believed the defence claim that the girl had been engaged in a series of sexual encounters with several boys of Loro PTC.
The court also believed the priest’s defence that he had been away in Ngetta and not Loro during the time he allegedly defiled the girl.
Thus on July 28, 2004, the Rev. Fr. Ambrose Owiny walked home free after his acquittal.
WHAT IS DEFILEMENT?
By vision reporter
DEFILEMENT is defined as having sexual intercourse with a girl who is below the age of 18 years, according to the Penal Code Act. Anybody below 18 years is a child under the law and therefore it does not matter whether the girl agreed to have sex or not.
This is because below the age of 18 a girl is not considered mature enough to make meaningful decisions about sex. The maximum punishment for a man found guilty of defilement is death. The law also prescribes lighter punishments such as life imprisonment or many years behind bars.
In situations where it is proved that a man has tried to force, persuade or trick an under-18 girl into having sex with him but did not succeed, he is declared guilty of attempted defilement. Such a man can be sent to prison for up to 18 years with or without corporal punishment.
For defilement or attempted defilement, it doesn’t matter if the boy too is under 18. As long as the girl is under 18, the boy is guilty of defilement even if she is older than him.
Because defilement is a capital offence that attracts heavy punishment, the court usually requires proof beyond doubt before someone is sentenced. This is to avoid any risk of sentencing someone to extreme punishment such as death or life imprisonment when they, in fact, did not commit the crime.
Even with the laws in place, the practice is on the rise. It also accounts for a large number of school dropouts. For example a total of 45 pupils from 18 primary schools in Kasese district were defiled last term, according to a report released by Karambi Action for Life Improvement and Good Hope Foundation for Rural Development, a Kasese based non-governmental organisation. The report said 15 of the defiled girls got pregnant.
Nationally, more than 12,000 cases of defilement were reported in 2007 alone, according to a crime report released by the Police. The victims are mostly school girls who are cornered during holidays or school time. A majority are tricked using enticements to get them into situations where they find it difficult to escape.
A common scenario is a male teacher sending a girl to take books into his house then he follows. A big fraction of the defiled girls are dependants who are preyed on by their guardians. Destitute girls on the streets are also often defiled.
Defilement is the third most common type of case reported to the Police after common theft and assault. Yet this is only a tip of the iceberg. Most of the defilement is never reported to Police. Even the few reported cases are frustrated by out-of-court settlements that usually involve the defiler paying large sums of money to the girl’s parents. Some parents first try to extort money from the defiler and only report after failing. By this time it may be too late to get meaningful results from vaginal investigations and semen analysis.
Most of the cases reported to the Police never go to court. For instance, out of over 12,000 cases reported to Police in 2007, a little more than 3,300 were charged in court. This is partly because of out-of-court settlements. Fearing the risk of death sentence or life imprisonment, the arrested suspect often accepts to pay money so that the girl’s parents drop the case.
The few cases that go to court are often faced with the difficulty of getting conclusive evidence. More than half the defilement cases end up being dropped by the Director of Public Prosecution’s (DPP) office due to lack of evidence. In other cases the parents decide to not pursue the case further.
Sometimes the victims refuse to give incriminating evidence either because they develop sympathy for the defiler, or because they fear the embarrassing process of producing evidence such as handing over their knickers, going for vaginal examination and describing details of the encounter in court.
Given that the victims are minors, their account my not be as accurate as enough to convict the suspects. Parents have also been frustrated by the long period taken by the Police to investigate, arrest and prosecute the suspects. In many instances, courts always release the suspects for lack of sufficient evidence.
Sometimes, the victim is not taken to a medical facility for examination, which is essential in the case. At times the time between when the crime was committed and when the victim was taken for examination is long and where there is no incriminating evidence, the suspects are usually released.
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