RE N.J

RE N.J

The High Court held that child defilement is legally equivalent to rape because a child under 18 cannot consent to sexual intercourse. Therefore, article 165 of the Penal Code, which exempts from criminal liability for abortion in cases of rape, applies to I.C.'s case. I.C., being 13 and impregnated through defilement, is entitled to abortion. The lower court's refusal was incorrect as it failed to recognize the legal equivalence of child defilement and rape and the absence of consent.

Citation
RPA0787/15/HC/KIG
Parties
Applicant: N.J.; Respondent: Prosecution
Court
High Court
Jurisdiction
Rwanda
Judgment Date
30 October 2015
Case Number
RPA0787/15/HC/KIG
Procedural Posture
Criminal Appeal / High Court Appellate Judgment
Outcome
Appeal allowed; lower court judgment reversed.
Legal Topics
Child Defilement, Abortion Rights, Interpretation of Penal Code, Reproductive Rights, Consent and Capacity, International Human Rights Instruments
Source Language
en, rw
Criminal Law Child Protection Health Law Human Rights Child Defilement Abortion Rights Interpretation of Penal Code Reproductive Rights +2 more

Case Brief

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Parties

N.J.

Applicant

Prosecution

Respondent

Procedural Posture

Criminal Appeal / High Court Appellate Judgment

Legal Issues

  1. 1 Whether article 165 of the Penal Code applies to child defilement cases for abortion rights
  2. 2 Whether I.C. was raped/defiled under the law
  3. 3 Whether I.C. can be granted the right to abort

Ratio Decidendi

The High Court held that child defilement is legally equivalent to rape because a child under 18 cannot consent to sexual intercourse. Therefore, article 165 of the Penal Code, which exempts from criminal liability for abortion in cases of rape, applies to I.C.'s case. I.C., being 13 and impregnated through defilement, is entitled to abortion. The lower court's refusal was incorrect as it failed to recognize the legal equivalence of child defilement and rape and the absence of consent.

Court Disposition

Appeal allowed; lower court judgment reversed.

Orders

  • I.C. is granted the right to abortion.
  • Kacyiru Police Hospital is ordered to carry out the abortion before the fetus reaches 22 weeks.