A mother of two has been convicted after she was found guilty by the court for helping her husband to rape a girl who sought their financial assistance.
Magret Timothy from Tanna was found guilty on three counts of complicity to sexual intercourse without consent contrary to sections 30, 90, one count of an act of indecency without consent contrary to section 98 and an additional count of threats to kill contrary to section 115 all in the Penal Code Act CAP 135.
Justice Jean Paul Geoghegan said that these events are alleged to have occurred on February 13 and 14, 2017 at the couple's home in Teouma Valley.
He said that Mrs Timothy was to have been tried together with her husband Timothy Kavila who was charged with five counts of sexual intercourse without consent, one count of an indecent act without consent, one charge of threatening to kill and one count of intentional assault.
He said that Mr Kavila pleaded guilty to all of those charges against him while Mrs Kavila maintained her not guilty plea and the trial proceeded against her.
Her defense presented in court was that she only did those things under duress and violent acts from her husband.
The 20-year-old victim had approached the couple asking if they could help her with passport money at Salili and they took the victim to Teouma Valley where they sexually assaulted her and kept her hostage.
The victim was the only prosecution witness and she confirmed that Mrs Timothy and her husband came to Salili to assist her to obtain a passport to enable her to travel to Australia.
She was told by them to bring her clothes and follow them to Teouma.
A tent was constructed for her and they ate an evening meal and then went to bed.
The victim testified that she fell asleep and was subsequently woken by Mrs Timothy.
Justice Geoghegan said that the victim’s evidence was that Mrs Timothy told her that she and her husband had agreed for her to come to Teouma on the condition that they ‘wanted a baby from her and Mrs Timothy and her husband would raise it’.
That clearly came as a surprise to her.
Mrs Timothy then left and returned to the tent at which time she was with her husband. Both Mrs Timothy and Mr Kavila were naked.
Mrs Timothy then said ‘are you removing your clothes so that we can touch your body?’ at which point the complainant then became scared.
Mrs Timothy then said ‘you have to let us touch you otherwise he (Timothy Kavila) will stab you with a knife’.
The complainant stated that she saw Mr Kavila holding a knife at which point she became extremely fearful.
She was told by both parties that she should give birth to their baby.
The victim gave evidence that the same thing occurred on the evening of February 14 and Mrs Timothy said that she and the victim performed oral sex on each other.
The judge said that the victim said that she was frightened because of the knife that Mr Kavila was carrying.
Mr Kavila had sexual intercourse with her again and that Mrs Timothy was present while that occurred.
She gave evidence that February 15 was a repeat of what had occurred on the previous days.
The victim gave evidence that that night (it is not clear whether this was before or after the sexual offending) she heard crying outside and she knew that Mrs Timothy was crying because Kavila was ‘concentrating’ on her and neglecting his wife.
But Mrs Timothy said that all her actions on those two nights was because she was threatened to do so.
Mrs Timothy described an environment in which not only she, but also her children, were regularly the subject of brutal assaults.
She referred to Mr Kavila using a rope to hang her daughter from a tree at the house and that he would then whip her (the daughter) with a hose or water pipe.
Justice Geoghegan said that he considered that most of the elements necessary to establish the defence of duress would be applicable in an analysis of whether or not the accused was acting under ‘actual compulsion or threats, not otherwise avoidable, of death or grievous harm’.
“It might also be said however that while the test for ‘compulsion’ might be very similar if not identical, to the test for duress the concept of ‘coercion’ is likely to involve a somewhat less stringent set of criteria,” he said.
“This no doubt impacts upon an assessment of the degree to which criminal responsibility is diminished in any case.
“If Parliament had intended to make the defence of duress available it would have been very easy to do so.
“In addition, the deliberate provision for compulsion as amounting to diminished responsibility runs contrary to any argument that the common law defence of duress is one which is available in Vanuatu.
“The fact that Parliament has codified the criminal law in Vanuatu also defeats any suggestion that duress is available.
“For these reasons I hold that the common law defence of duress is not available to Mrs Timothy.
“I should add that even if it had been available the evidence would not have been sufficient to avail Mrs Timothy of such a defence."
He then convicted Mrs Timothy with all counts laid against her. The sentencing date is yet to be set.