Case No. RPA 0787/15/HC/KIG

HEADNOTE

The appellant, a 13-year-old Rwandan national, was raped by an older man leading to an unwanted pregnancy. Her mother requested an abortion on her behalf from the Nyarugenge Intermediate Court, but the Court rejected her request because the rapist was never criminally charged, the pregnancy did not pose an immediate risk to her health, and she may have become pregnant by some other means. The High Court at Kigali held that the evidence affirmed that the appellant had been raped, that the pregnancy did pose a risk to her health, and that there was no relevant legal distinction between child defilement and rape. The High Court established that the appellant was entitled to a lawful abortion.

FACTUAL AND PROCEDURAL BACKGROUND

The appellant was a 13-year-old Rwandan national from the district of Nyarugenge. An older man had deceived her into consuming alcohol until she became unconscious, after which he raped her. This resulted in the appellant’s unwanted pregnancy. The man was never criminally charged.

The appellant was embarrassed to attend school and had sought to terminate the pregnancy on her own by ingesting a harmful substance which threatened her life. On her behalf, her mother requested permission to obtain a lawful abortion from the Nyarugenge Intermediate Court, pursuant to article 165 of the Organic Law instituting the Criminal Code of Rwanda which provided an exemption from criminal liability for abortion where a woman has become pregnant as a result of rape. In the alternative, the appellant’s mother cited article 14 (2) (c) of the Protocol to the African Charter on Human and People’s Rights on the Rights of Women in Africa, to which Rwanda is signatory, which holds that member states must authorize medical abortions in cases of sexual assaults, rape, and incest, and where a continued pregnancy endangers the mother’s mental or physical health.

The Nyarugenge Intermediate Court denied the appellant’s request on three grounds. First, the Court held that it was unlikely that a rape had occurred because no criminal charges had been raised against the alleged rapist. Second, the Court held that the appellant’s pregnancy could have been caused by something other than rape, though it did not specify any alternative cause. Finally, the Court held that, because no evidence had been adduced to suggest that the appellant’s health was threatened by the pregnancy beyond her suicide threat, her alternative justification did not warrant an abortion. The appellant appealed to the High Court at Kigali on the ground that the medical evidence confirmed that she had been raped. The prosecution’s position was that, even if the appellant suffered an unwanted sexual encounter, such an attack would have constituted defilement under article 190 of the Organic Law instituting the Criminal Code of Rwanda, rather than rape, as the appellant was below the age of consent. As defilement was not an express ground for lawful abortion, the prosecution asserted the trial judge had not erred in rejecting the appellant’s application.

RELEVANT LEGAL PROVISIONS
Article 165 of the Organic Law no. 01/2012 of 02/05/2012 instituting the Criminal Code of Rwanda:
Exemption from criminal liability for abortion
There is no criminal liability for a woman who commits abortion and a medical doctor who helps a woman to abort if one of the following conditions is met:
1. When a woman has become pregnant as a result of rape;
2. When a woman has been subjected to forced marriage;
3. When a woman has become pregnant due to incest in the second degree;
4. When the continuation of pregnancy seriously jeopardizes the health of the unborn baby or that of the pregnant woman.
The exemption from criminal liability under items 1, 2, and 3 of Paragraph One of this Article shall be permitted only if the woman who seeks abortion submits to the doctor an order issued by the competent Court recognizing one of the cases under these items, or when this is proven to the Court by a person charged of abortion.
The Court where the complaint is filed shall hear and make a decision as a matter of urgency.
Article 190 of the Organic Law no. 54 of 14/12/2011 instituting the Criminal Code of Rwanda:
Child defilement is defined as any sexual intercourse or any sexual act with a child regardless of the form or means used.
Article 14 (2) c) of the Protocol to the African Charter on Human and People’s Rights on the Rights of Women in Africa:
(2) Member states shall take all appropriate measures to…(c) protect the reproductive rights of women by authorizing medical abortion in cases of sexual assault, rape, incest, and where the continued pregnancy endangers the mental and physical health of the mother or the life of the mother or the fetus.
The Court held on the issue of whether the appellant was ineligible to receive an abortion because she had been defiled rather than raped that there was no relevant legal distinction between the two offences. Specifically, it held that a child could be both raped and defiled as the definition of rape entails a lack of consent. Since a minor cannot consent to a sexual encounter under article 190 of the Organic Law instituting the Criminal Code of Rwanda, all defilement charges are simultaneously rape charges. Therefore, the Court held that any child who is the victim of a defilement is entitled to legal abortion under article 165 of the Organic Law instituting the Criminal Code of Rwanda.

The Court found on the issue of whether the evidence adduced at trial was sufficient to establish that the appellant had been raped that the fact the perpetrator had not been criminally charged was immaterial. The medical evidence provided at trial was consistent with a forced sexual encounter. Moreover, because the appellant was only 13 years old at the time, she could not legally have consented. Accordingly, criminal charges were not needed to establish that a rape had occurred.

The Court held that the trial judge had erred on the issue of whether the appellant’s pregnancy could have been caused by something other than rape. Doctors gave clear testimony confirming that the pregnancy was caused by a sexual encounter. Furthermore, the prosecution failed to provide any alternative grounds by which the appellant could have been impregnated.

The Court adopted a broad definition of health by holding that if the appellant carried the pregnancy to term, it would constitute a threat to the appellant’s life. Namely, it held that if the appellant were forced to give birth and raise a child, this would prevent her from attending classes to learn essential skills for her future. This prospect, in conjunction with her suicide threat, constituted a danger to the appellant’s health. Therefore, the Court held that the appellant was entitled to a court order for an abortion.

“The word[s] Umugore in Kinyarwanda, Woman in English, [and] Femme in French [have] been recurrent where the Prosecutor presents in [article 165 of the Organic Law instituted in the Criminal Code of Rwanda] that no defiled child is mentioned in the article but instead a woman, thus the Prosecutor understands that the person who is granted the termination of the pregnancy is solely a mature person who is raped.

“The Court finds that this confusion shall be cleared by what those crimes have in common; that is the rape victims are raped against their consent. Regarding the child, under 18 years, the child is considered unable to decide for themselves concerning sexual intercourse. This is also called rape. Referring to Article 190 of the aforementioned Organic Law which uses the word ‘child defilement’ instead of ‘rape’ that is mentioned in Article 165 of the present Organic Law does not change that a child was raped, since it was done against their consent.” (Paras 7-8)

“The Court finds that [the appellant] has the right to request a medical abortion... as it is clear that she was defiled at the age of 13, and any child defilement regardless of the form and any means used is qualified as defilement as the sexual intercourse is done against the child’s consent.” (Para 18)

“it is beyond a reasonable doubt that getting pregnant made [the appellant] shameful among her schoolmates as she states since she is still young, and the fact that she tried to abort as mentioned by her mother. The Court finds that it is hard for [the appellant] aged 13 to assume the responsibility of a mother considering the maturity age which is 21 provided for by the Civil Code whereby a person can become a parent...

“The Court finds that [the appellant's] need to continue her lessons is reasonable since she is still a pupil in P 5, giving birth and bringing up a child would prevent her from continuing her studies as well as her future life.” (Paras 20-21)