In a landmark ruling, two High Court judges have affirmed the right of mentally ill persons to engage in consensual sexual relationships and that they should not be unduly restricted from exploring their sexuality.
As reported by NewsDay, the case involved Mtindi Zidyengi, a man who had been convicted by a magistrate’s court for raping a 33-year-old woman with mental illness.
However, upon review, Justices Nyaradzo Priscilla Munangati-Manongwa and Siyabona Musithu overturned the conviction.
The judges said that while the law aims to protect the mentally ill, it is important not to dismiss their sexuality without sufficient medical evidence.
They argued that mentally ill people “also enjoy sex in their own right and should not be restricted from enjoying sex or entering into a relationship with a person of the other sex.”
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The judges stated that it cannot be automatically assumed that mentally ill individuals lack the competence to consent and appreciate the nature of sexual acts.
They cautioned that “great care should be exercised not to dismiss their sexuality without adequate medical evidence.” Said Justice Munangati-Manongwa:
The notion that persons with mental conditions cannot enjoy sex in their own right needs to be dispelled where there is no evidence that they are mentally incompetent to consent and appreciate the nature of the act.
She said the alleged victim was a good example of how a certain degree of protectionism can restrict the enjoyment of life by the mentally ill.
Zidyengi had been charged with contravening section 65 of the Criminal Procedure and Evidence Act by engaging in a sexual act “with a mentally incompetent adult person”.
Zidyengi had a relationship with a woman who was on medication for the condition.
The court heard that in one instance, the woman’s mother saw them having sexual intercourse, but did not report the matter.
It was also revealed that the mother reportedly witnessed another sexual encounter and got concerned, but did nothing.
The court heard that the woman started refusing her medication, indicating that she was pregnant and did not want to endanger the child.
She reportedly reported her mother to the police for forcing her to take medication.
The mother was summoned and she revealed the sexual encounters, leading to Zidyengi’s arrest and conviction for taking advantage of the woman.
Justice Munangati-Manongwa, however, said she raised the issue with the trial magistrate by enquiring if the conviction was proper in the absence of expert evidence that the complainant was incapable of consenting.
The judge said the doctor’s report stated that the woman has a history of hallucinating, but was well-oriented, had average abstract thinking, and good judgement while her intelligence was rated as good with the conclusion that the complainant could follow court proceedings
Justice Munangati-Manongwa also considered evidence showing that the woman had lucid moments, refused to take tablets, and reported her mother to the police.
The State outline indicated that she was consenting to the act and was Zidyengi’s girlfriend. Said the judge:
She could understand court proceedings and she was or is of average intelligence and her judgment and intelligence were rated as good.
These comments by themselves pointed to an individual who was not always incapacitated by her condition but had lucid moments, is of average intelligence and her judgment rated as good.
Justice Munangati-Manongwa said the Constitution of Zimbabwe also provided that every person had inherent dignity in their private and public life and the right to have that dignity respected. She said:
Hence those who suffer from mental challenges should enjoy that right during their lucid moments as the complainant in casu [in this case].
… the unwarranted restriction to the enjoyment of sex, entering into a relationship with a person of the other sex may border on infringement of rights of the mentally challenged persons given their right not to be discriminated upon on the basis of disability.
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