S v NYATHI 1982 (2) ZLR 197 (H)

Flynote

Criminal C law — rape consent — complaint mentally retarded — whether mental deficiency sufficient to render incapable of giving consent.

Headnote

Where the complainant on a charge of rape is mentally retarded, it is not incumbent on the prosecution to prove the idiocy or imbecility of the complainant in order for her to be deemed incapable of consenting. It is sufficient that she has notsufficient knowledge or understanding to comprehend -

• (a) that what is proposed to be done is the physical fact of penetration of her body by the male organ or, if that is not proved,
• (b) that the act of penetration proposed. is one of sexual connection as e distinct from an act of a totally different character.

Whether the requisite State of mental defectiveness has been reached in a particular case is a question of fact upon which expert opinion should be sought.