Judge stands by rape acquittal of doctor

THE state does not have a realistic chance of succeeding with an appeal against the acquittal of a Swakopmund-based psychiatrist who was accused of raping one of his patients, a judge has concluded in a ruling delivered in the Windhoek High Court.

In the ruling, delivered on Tuesday, judge Eileen Rakow said there is “only a remote possibility” and not a realistic chance that the state could succeed with an appeal against the acquittal of psychiatrist Pieter van der Westhuizen, who was found not guilty on five criminal charges in August this year.

Rakow in the judgement in which Van der Westhuizen was acquitted said she found the allegations a former patient of Van der Westhuizen made against him were likely or probably a false memory and were not corroborated by physical evidence.

The judge said the court in its judgement “looked at the totality of the evidence adduced, and found that as such the evidence was unreliable and improbable and did not establish a prima facie case” against Van der Westhuizen.

Rakow discharged Van der Westhuizen (65) after the conclusion of the state’s case in his trial.

The effect of his discharge was that he was off the hook on all charges without having to present evidence in his defence to the court in response to the prosecution’s evidence.

Van der Westhuizen was prosecuted on three charges of rape, a count of indecent assault, and a charge of attempted murder, alternatively using pharmaceutical substances to drug a woman.

All of the charges were based on allegations that he had raped one of his female patients at his consulting rooms at Swakopmund on 7 November 2015.

Van der Westhuizen was first charged in November 2016.

His trial began in July 2019, when he denied guilt on all the charges.

In a lengthy plea explanation given to the court, Van der Westhuizen claimed the complainant had acquired “a false memory of indecent assault and rape” as a result of a past experience of childhood sexual abuse, combined with the effect of medication which she took before and during her visit to his consulting rooms.

He also claimed he had erectile dysfunction at the time of the alleged incident and had not been able to have penetrative sexual intercourse since about 2010.

The complainant in the matter testified during the trial that Van der Westhuizen exposed his private parts to her and raped her while she was at his consulting rooms on a Saturday morning, when she had an appointment with him for a supposed therapy session.

Rakow stated in her ruling this week that in the judgement in which Van der Westhuizen was found not guilty she concluded that the state’s evidence was not sufficient to prove its case.

Some of the state’s evidence in fact corroborated the defence which Van der Westhuizen intended to raise, including his claim that the complainant’s allegations resulted from a false memory, that he had erectile dysfunction, and that the procedure which he performed on the complainant at his consulting rooms on the day of the alleged incident was a recognised medical procedure which required the administration of various drugs, Rakow recounted as well.

South African senior counsel Stephen Farrell represented Van der Westhuizen when the state’s application for leave to appeal to the Supreme Court was heard three weeks ago.

Prosecutors Palmer Kumalo and Filistas Shikerete-Vendura represented the state.