Tonga female judge lenient on sexual assault case

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Suspended sentencing becomes an issue in sexual assault case

By Kalafi Moala

Nuku’alofa, Tonga – It was a case of sexual assault, and it should have been a rape charge other than a loophole in Tongan law, which defines rape only when there is penile penetration. Anything else is sexual assault, which brings a lesser charge. Here is what happened.

Tongamoa Kakau, 32, was drinking with friends, and like he has done previously when in a drinking spree, he was not altogether in total control of his good senses.

He wondered into a house not his own, and ended up in the bedroom of a married couple while they were sleeping at their house at Houmakelikao on the early morning of September 2019.

Despite his self-claimed drunkenness, he knew how to get on to the wife’s side of the bed while she was sleeping with her husband.

The wife who was the complainant in this case at the Supreme Court explained that at about the morning hours of 3 – 4am, she woke up and felt someone kissing her on the mouth, and touching her vagina. She thought at first it was her husband, but she soon realized it was someone else. She yelled out her husband’s name, and the accused fled.

The complainant testified that she felt anger, embarrassment, and humiliation, and she was emotionally affected by the ordeal. She had tried to move on with her life, putting everything behind her, and relocating to another island.

She said that a few days after she was assaulted, the mother of the accused and his sister came to see her and apologized, and presented her with a gift of $400.

The accused was still remanded in custody at the time.

But later on, the accused approached the complainant and asked to have the charges withdrawn so that he would be able to go overseas on the Seasonal Workers Scheme.

Justice Langi in giving judgment said the accused was a reliable and hardworking young man who is currently responsible for taking care of his parents and siblings, as well as his adopted daughter.

Kakau served only six months of his three-year sentence after Justice Langi suspended two years for three years after his release.

Because the prisoner has no relevant criminal conviction since he was convicted in 2004 for assault, Justice Langi deducted six months, leaving a total sentence of two years and six months.

Kakau was found guilty of one count of serious indecent assault.

In sentencing Kakau, Justice Langi said: “I take the fact that the accused is not remorseful and maintains his innocence and putting the witness through the trauma of having to give evidence as serious aggravating factors.”

He has however, found himself in an unfortunate situation caused by his own decision to go on a drinking spree that resulted in him committing something he would not have done if he had been sober.”

It is amazing that alcohol has been blamed on Kakau’s behavior despite the fact he knew well enough how to find the bedroom in the house of the complainant, and how fast he fled the house when discovered.

Being intoxicated was no excuse for this behavior, and should never have been a mitigating factor, if it was.

Two years suspended from his sentence meant that Kakau only served six months of his three-year sentence.

‘Ofa Guttenbeill Likiliki of the Women and Children’s Crisis Centre (WCCC) has made it clear on many occasions of public speech that the law concerning rape must be changed, requiring no longer the criteria of penile penetration.

She says that this will prevent rapists from getting a much lesser charge for their crimes because of the inadequacy of the laws of Tonga.

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