Van der Bank v The State

The appellant was charged with rape and indecent assault arising from incidents in 1999 involving a 16-year-old girl who was intellectually disabled. He admitted having sexual intercourse with the complainant on three occasions and inserting his finger into her vagina, but claimed that all acts were consensual. The complainant suffered brain damage at birth, attended a special school for moderately mentally challenged children, and functioned at a mental level far below her chronological age. At trial, her evidence was given through an intermediary. Expert evidence from a psychologist and a forensic psychiatrist established that she was incapable of giving informed consent to sexual activity. The appellant knew of her mental condition and her attendance at a special school. He was convicted in the Regional Court, the convictions were confirmed by the High Court, and subsequent appeals were dismissed. Special leave to appeal to the Supreme Court of Appeal was granted, limited to the admissibility of the complainant’s evidence given through an intermediary.

The appeal against the convictions was dismissed.

The case confirms that consent to sexual acts in South African criminal law requires legal capacity, and that sexual activity with an intellectually disabled person who lacks such capacity constitutes rape or indecent assault notwithstanding apparent acquiescence. It also illustrates the approach of appellate courts in upholding convictions where, even if certain evidence may be contentious, sufficient admissible evidence exists to sustain the conviction.