UNIT 7 - SEXUAL OFFENCES
“Offences against morality”
Learning Outcomes
At the end of this lesson, the student should:
• understand sexual offences that can be committed in Zambia and who
they can be committed by;
• be able to define elements for the offences of rape, indecent assault,
defilement & incest
• understand the difference between the offence of rape and that of
incest.
RAPE
S.132 PC - Rape is unlawful carnal knowledge of a woman or girl without her
consent or with ‘consent’ if consent is obtained by:
o Force,
o threats or intimidation,
o By fear of bodily harm,
o False representation as to the nature of the act
o personating a woman’s husband.
RAPE CONT’D
Actus reus for rape?
1. there should be penetration
2. without the consent of the woman or girl
RAPE CONT’D
1. PENETRATION
R v. Yohani Mporokoso (1939) 2 NRLR 152 – held that the victim has to
prove penetration or partial penetration
Kaitamaki v. R (1985) AC 147 – where the woman revokes consent but D
still continues with the intercourse, it is rape.
Emmanuel Phiri V The People (1982) Z.R. 77 (S.C.) - in a sexual offence
there must be corroboration of both commission of the offence and the
identity of the offender in order to eliminate the dangers of false complaint
and false implication.
RAPE CONT’D
2. LACK OF CONSENT
o R v. Lineker (1995) 3 ALL ER 70 (CA) – Sexual intercourse without consent
is rape
o Mubanga v People [2018] ZMCA 246
o R v Williams [1923] 1 KB 340
o R v Elbekkay [1995] Crim LP 163
o Ackson Zimba V The People (1980) Z.R. 259 (S.C.)
o Butembo v. The people (1976) ZR 193
o Mweemba & Another v. The people (1973) ZR 127
o R v Olugboja (1982) QB 320 (CA),
RAPE CONT’D
Mens rea:
o Intention –
o Recklessness - DPP v. Morgan (1976) AC 182 HL
The offence of attempted rape is considered to be as grave as the offence of
Rape – life imprisonment (PC 133);(PC 134)
o Robert Kalimukwa V The People (1971) Z.R. 85
INDECENT ASSAULT
The offence of indecent assault is stated under S.137 PC
Indecent assault is an assault against another person that has occurred in
indecent circumstances, where it is established, that the accused person was
aware or did not give any thought to the fact, that there was a lack of
consent.
o Mwanza v The people (1976) ZR 154 - Indecency" in this context has a
wider meaning than pure sexual indecency.
o Aswell Banda v The People [2019] ZMCA 20 – as assault is any touch on
another person without that person’s consent and when such touch is
sexual in nature or offends against human decency that that is an
indecent assault.
INDECENT ASSAULT CONT’D
o Miloslav v The People [2014] ZMSC 142:- elements for the offence of
indecent assault:
indecent assault by complainant
The assault must be unlawful (no consent from the victim)
It is a defence to D who reasonably believed that the Victim was
consenting to the act.
o A claim that a child consented to the act of indecency cannot be a valid
defence (S137(2))
INDECENT ASSAULT CONT’D
Actus reus:- the act of indecency
Mens rea:- Intention; Recklessness
Further reading:
• Kabwita v The People [2014] ZMSC 32
• Habeenzu v The People [2012] ZMSC 65 - notice how the court
distinguishes indecent assault from rape.
DEFILEMENT
S138 PC – sexual intercourse with a child below the age of 16.
Actus reus: -
o Sexual intercourse
o With child below the age of 16 - Gift Mulonda v The People (2004) Z.R
135
o Mapapayi v People [2017] ZMSC 10
mens rea – intention, recklessness,
o Accused can raise defence that the Child appeared to be16 years & above
- reasonable belief – Clifford Dimba v the people (2014) ZMHC 2
o Mubita Moonga v The People [2021] ZMCA 80
DEFILEMENT CONT’D
• The People v. Stephen Hara [2014] ZMSC 31
• Accused was sentenced to 30 years imprisonment with hard labour the
harsh sentence was imposed to reflect the barbaric nature of the act
- Nsofu v the People (1973) ZR 287
- Sole Sikaonga v the people (S.C.Z Judgment no. 20 OF 2009) – Harsher
punishment can be given where there are aggravating circumstances
- Ndhlovu v People [2015] ZMSC 72 – a boy can also be defiled.
- Mumba v People [2018] ZMCA 19
ATTEMPTED DEFILEMENT
PC s.138(2) attempted Defilement - 14
o Therefore the following needs to be established to secure a conviction;
• Attempt to have sexual intercourse
• With a child below 16
DEFILEMENT CONT’D
• Defilement of Persons with Mental Illness (s139) PC
• Such a person is liable to imprisonment of 14 years imprisonment.
• Knowledge to the accused that the victim is an Idiot or imbecile
• There is need to prove that D knew that the victim had a mental disability
See:- Felody Ng'andu v The People [2019] ZMCA 62
• Maybin Ng'uni v The People [2008] ZMSC 121
INCEST
PC S159 – incest by males - Carnal knowledge of grandmother, mother, sister or
daughter, grand daughter, aunt or niece
• Felony – not less than twenty years/life imprisonment Consent immaterial
• Attempt 10 years not exceeding 25 years
S161 – incest by females - Any female person who has carnal knowledge of a
male person who is to that person’s knowledge her grand-father, father,
brother, son, grand-son, uncle or nephew commits a felony and is liable, upon
conviction, for a term of not less than twenty years and may be liable to
imprisonment for life.
INCEST CONT’D
162 – brother and sister includes half brother and half sister
Mens rea – intention, recklessness (Knowledge as part of the fault element)
o Mangoma v the people [2017] ZMSC 57;
o Best Mabvuto Ng'uni v The People [2008] ZMSC 5;
o Mathews Chitupila Chalwe v The People [2020] ZMCA 132.
See the following sections as well:
o S. 155 – unnatural offences
See Chitalo v the People (2014) ZMSC 108
o S 158 – indecent practices between persons of the same sex
