Sexual offences are offences which involve non-consensual sexual acts, exploitation, or abuse.

These offences vary depending on the jurisdiction but generally laws governing sexual offences
aim to protect individuals from harm for victims. The legal frame work for prosecuting sexual
offences often considers factors such as consent, the age of the victim, and the relationship
between the parties involved. The discussion will explore the legal definitions, and key elements
and implications of sexual offences, examining both statutory and case law perspectives.

Defilement

The Penal Code Act Cap 128 provides that any person who performs sexual act with another
person who is below the age of 18 years commits a felony known as Defilement and is on
conviction liable to life imprisonment 1

Ingredients of Defilement include

1. There must a sexual act

In the case of katima John v Uganda2 The appellant, katima John, was convicted by the high
court for the offense of Defilement under The Penal Code Act 1283 and sentenced to 10 years
imprisonment on August 1996. He appealed against both the conviction and the sentence. Court
of appeal’s decision upon reviewing the evidence and submissions the court of appeal found
merit in the appellants arguments, particularly concerning the inconsistencies in the
prosecution’s evidence and the trial judge’s failure to adequately address them. Consequently,
the court allowed the appeal, quashed the conviction, and set aside the sentence.

1
Section 116
2
2000UGCA 25
3
Section 123 (1)
Pg. 1
Penal Code Act Cap 128 provides for attempted Defilement that any person who attempts to
perform a sexual act with another person who is below the age of 18 years commits an offence
and is on conviction liable to imprisonment not exceeding 18years 4

Ingredients of attempted Defilement include

1. There must attempt to perform a sexual act

Uganda v ojengo Abdu The accused, ojengo Abdu a 68-year-old man with seven grandchildren
and three elderly wives was charged with the attempted Defilement of a twelve-year-old girl who
was described as an imbecile. At the time of sentencing, he had been on remand for three years
and suffered from several illnesses associated with old.5

For instance, in Uganda v Muwanga6 the court considered the sentencing practices in similar
cases including that of Ojengo Abdu, to determine an appropriate sentence

Rape

The Penal Code Act, rape is defined as unlawful carnal knowledge of a woman or girl without
her consent or when consent is obtained through force, threats, intimidation, false representation,
or impersonation of a husband. Punishment upon conviction is death7

In England, rape is codified under the Sexual Offences Act following DPP vs. Morgan8 where an
unreasonable belief in consent is not a defense. The term “carnal knowledge” used in Ugandan
law is synonymous with "sexual intercourse" in England. The Sexual Offences Act clarifies that
penetration, not ejaculation, constitutes intercourse.

4
Section 116(b)

5
no. 9 of 2011.
6
(criminal sessions case) No.0108 of 2016

7
Section 110
8
[1976]AC182

Pg. 2
Marital Rape

Traditionally, common law held that a husband could not rape his wife unless they were legally
separated (e.g., by a court order, decree nisi, or formal separation agreement). However, a
husband cannot use force or violence to enforce marital rights R vs. Miller9 , Shampil Singh 10

To prove rape, prosecution must establish;

Lack of consent, Sexual intercourse occurred (penetration, however slight, suffices), Use of force
Consent is crucial. In R vs. Flattery11 and R vs. Williams 12, consent obtained by fraud (e.g.,
deception about the nature of the act) was deemed invalid. Evidence of rape should be
corroborated through medical reports, witness testimony, or confessions (R vs. Kapanda)13.

Indecent Assault

The penal code act Cap 128 provides Indecent assault is a sex crime that involves indecent
contact with another person without their consent. It is considered a form of aggravated assault
with significant overlap with sexual assault offenses14. Black’s Law Dictionary defines it as
attacking someone in a sexual manner without forcing intercourse.

For an act to be classified as indecent assault, it must have:

A sexual connotation, which may arise from the body part touched (e.g., anus, breasts) or
the intention of the perpetrator.

Intent for sexual gratification by the assailant.

Legal Provisions
9
(1954)2Q.B282
10
(1962)AC188
11
(1877)2QB 410
12
[1923]1 KB 340
13
VOL. 2 NRLR

14
sec 115
Pg. 3
 Indecent assault on a woman or girl is a felony punishable by up to 14 years
imprisonment.

Consent is not a defense if the victim is under 18 years.

Using words, sounds, gestures, or objects to insult a woman’s modesty is a misdemeanor

To prove the offense, the prosecution must establish:

The act was unlawful.

The accused assaulted a woman or girl.

The act was done without the victim’s consent.

The accused took part in the act.

Even the slightest touch is sufficient to constitute an assault.

In R v. Tabassum 15, Women consented to a physical examination under the belief that it
was for medical purposes. Since the act lacked a medical purpose, their consent was
invalid, and the accused was convicted of sexual assault.

BIGAMY

This is an act of entering into a marriage with one person while still legally married to another.
This is explained further in The penal code act cap 12816

It is a condition of having two wives or two husbands at the same time. According to the
Osborn’s Law Dictionary, 11th edition bigamy is an offence committed by any person who,
being validly married and while the marriage subsists marries any other person during the life of
the existing spouse or Is an offence of marring someone while already married to another.

15
[2000]2CrAppR328

16
section 142
Pg. 4
THE ELEMENTS OF BIGAMY INCLUDE;

1. Having a husband or wife leaving (first marriage)

2. Goes through a ceremony of Marriage (the second ceremony). The first marriage has been
declared said by a court of complete jurisdiction.

3. The husband or wife of the first marriage at the time of the second ceremony has been
continually absent from such a person for seven years and has not been heard of by such person
as being alive with in that time.

The law of bigamy is designed to uphold the sanctity of monogamous marriage. By its very
nature, it cannot apply to polygamous or potentially polygamous marriages e.g. Islamic and
potentially customary marriages.

Prosecutions must prove, the accused went through a valid ceremony of marriage with the first
spouse e.g. By production of a marriage certificate or testimony of one present during the
ceremony. Prosecution must also prove that the accused, first spouse was alive at the time of a
second ceremony.

The second ceremony must be one known to as recognized by the law or capable of producing a
valid marriage e.g. by a licensed officiator or licensed venue.

The second marriage must be valid by reason of it taking place during the life of the first spouse.
This emphasizes that bigamy can only be committed by persons in polygamous marriages.

DEFENCES TO BIGAMY INCLUDE

1. The first marriage has been declared void by a court e.g.

2. The former marriage was between the prohibited degrees of relationships.

3. The first spouse has been completely absent from the accused at least seven

years at the time of the second ceremony and the accused has not heard from the first spouse as
being alive within that period.

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 17
In R V Tolson six and a half years after the accused’s brother in law told her that her husband
had drowned at sea, the accused married another man, twelve months into her second marriage,
her first purportedly dead husband returned from America.

It was held, that she was not guilty of bigamy even though her husband had not been absent for
seven years at the time she remarried as she honestly and reasonably believed him to be dead.

The other party to a bigamous marriage who knows of the subsistence of the bigamous former
marriage may be charged as a principle offender to bigamy.

However, that the offence of bigamy does not apply to customary marriage in Uganda and
marriages under Islamic marriages because they are potentially polygamous.

17
(1889)23 QBD 168
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