Musumhiri v. State

The 47-year-old male applicant requested bail pending the appeal of his conviction and 15-year sentence for raping the 16-year-old complainant. The applicant appealed, arguing that the intercourse was consensual because the victim did not scream or immediately report the rape after a witness stumbled upon the incident. The applicant had to show, among other things, the likelihood of success of his appeal to obtain bail. The court dismissed the bail application after rejecting the state's concession that the applicant had a meritorious appeal because complainant's failure to scream or to immediately report the rape cast doubts upon her lack of consent. Citing research about cultural inhibitions on gender violence victims, the court concluded that silence could not be equated to acquiescence. With women often held culturally as custodians of appropriate sexual conduct, and with the responsibility for sexual restraint being placed on a woman, regardless of her age or power imbalances, the court found it understandable that the complainant failed to make an immediate report. The court noted that a young girl may not make a voluntary report because her cultural context makes it difficult for her to do so without being re-victimized. Consequently, the proposition that the victim's initial silence implied consent was untenable and could not be ground for bail.