13 May 2024
Lusekelo Kamfwa
Sexual offences
refer to offences that involve one engaging in sexual activity that is
prohibited by law. Sexual offences are outlined in sections 131 to 164 of the
Penal Code, chapter 87 of the laws of Zambia. These include rape, defilement,
incest, acts against the order of nature, indecent assault, sexual harassment,
procuring one into a sexual act, sex trafficking, child pornography and the
owning of a brothel. In this article, the sexual offence of rape shall be
discussed. This offence is discussed in sections 132-134 of the Penal Code.
What is Rape?
Rape is defined in section 132 of the Penal Code as
unlawful carnal knowledge of a woman or girl, without her consent or with
consent that was gotten through coercion or threat or impersonation as one’s
husband (if the victim in question is married). What has been stated in the
previous sentence is the actus reus for rape. The mens rea of rape is the basic
intent to have sexual intercourse with a woman or recklessness as to the
consent of a woman (as stated in Simon E Kulusika’s book, Criminal
Law in Zambia: Law and Doctrine [Chiribwa Publishers, 2020] page 220).
The minimum penalty for rape, as provided for in
section 133 of the Penal Code is 15 years imprisonment and the maximum penalty
is life imprisonment.
Section 132 of the Penal Code lists certain elements
that must be met for an act to be considered rape. Below are the elements of
rape, with an explanation for each element:
·
“Unlawful
carnal knowledge” refers to one having
sexual intercourse that the law proscribes. This involves full or partial
penetration of the vagina by the penis (refer to the case of R v Yohani Mporokoso [1939] ZMHCNR 18).
·
“with a woman
or girl” brings to the fore that in
Zambia, rape can only be committed against a woman. This is in stark contrast
other jurisdictions such as Britain, where rape can be committed against either
a male or female (refer to Section
1[1] of the Sexual Offences Act, 2003 of the Parliament of the United Kingdom).
·
“without her
consent…” refers to the most crucial
element of rape, which is lack of consent from the victim. Consent is when one,
out of their own free will, agrees to something. In the case of sexual
intercourse, this is where one freely chooses to participate in sexual
intercourse. Where this is lacking, a rape has occurred (refer to the case of Mupwaya R Chisepo v the People [2015] ZMSC 166, J6). The provision then gives scenarios where consent is invalid, such as
consent gotten through coercion or fraud, or through impersonation as one’s
husband.
·
With a person
above the age of 16. Section 138(1)
of the Penal Code defines defilement as having carnal knowledge of a child.
Section 131A defines child (for the purposes of the section dealing with sexual
offences) as one who is below the age of 16. Thus, if a minor is “raped”, that
amounts to defilement, not rape. An act can only be considered rape if the
victim is above the age of 16.
It should be noted that marital rape (as a
scenario in which one spouse has non-consensual sex with the other married spouse)
is not directly proscribed in the Penal Code (refer to the
article written by Southern
Africa Litigation Centre titled, ‘Submission
by the Southern Africa Litigation Centre on the Review of the Penal Code and
Criminal Procedure Code’ [2021]https://www.southernafricalitigationcentre.org/wp-content/uploads/2021/02/Review-of-the-Zambia-PC-and-CPC-February-2021.pdf
accessed on 10/05/2024). Though
marital rape is not explicitly proscribed in Zambia, it is proscribed in other jurisdictions.
For example, in Britain, the case of R
v R [1992] 1 AC 599 set new
precedent by ruling that a husband who has sexual intercourse with her wife
without her consent is raping her. That decision is not binding on the courts
of Zambia and thus of persuasive value. It should also be noted that no court
decision in Zambia has explicitly discussed the criminality of marital rape.
Thus, it is presumed that marital rape is not proscribed.
Case Law Concerning Rape
Apart from the provisions of the Penal Code, case law
has provided much detail concerning what amounts to rape.
Firstly, an act is considered rape when there is
penetration of the vagina. This principle is established in the case of R v Yohani Mporokoso. In this
case, the accused joined a woman in her bed while she was asleep. When the
woman woke up and saw the man, she reported the matter to the police as a rape.
The court ruled that an act only amounts to rape if there was complete or
partial penetration of the vagina. Because that did not happen in this case,
the accused was convicted for attempted rape.
One element that must be lacking for sexual
intercourse to amount to rape is consent. Case law has much to say concerning
what amounts to consent.
Consent, as defined earlier,
is when one of their own volition, agrees to something. That said, it should be
noted that submission does not amount to consent. Submission refers to
the following of a command or one being ruled by the other. When a woman
submits to the command of a rapist, that does not necessarily mean that they
have consented to sex. This is shown in the case of R v Olugboja [1982] QB 320. In
that case, the accused raped the victim’s friend in the room adjacent to hers.
He then went to the victim and asked her to take off her clothes, which she
did. The man then had sex with her. Before the court, the accused argued that
the sex was consensual. The court, in defining consent, noted that consent is
accompanied by submission. However, submission does not always amount to
consent, as the court noted that people sometimes submit due to pressure, coercion,
or threat. The court further stated that what determines consent is the state
of mind of the victim at the time of the encounter. For that reason, the court
convicted the accused. Thus, submission does not amount to consent.
In addition, the court further stated that lack of
aggression does not invalidate the fact that one was raped. this point is
stated in the case of R v Olugboja
where the court said that an act can still amount to rape, even though
there is no violence. The issue at hand is consent, not violence.
It is also worth noting that a victim’s lack of
resistance to sex does not amount to consent. This was held in the case of Sinyolo Muchiya v the People [2023]
Appeal No. 139/2021 (CAZ), where the court stated that lack of resistance
to the sex does not imply consent.
Case law, in explaining consent has stated that consent
to sexual intercourse is valid if it is consenting to the act of sexual
intercourse, regardless of the other conditions the consenting party expected
to be meet. This is elaborated further in the case of R v Lineker [1995] 3 All ER 6973. In that case, a sex worker agreed to have sex with a young man based
on the promise that he would pay her. However, after the encounter, he did not
do so, prompting the woman to report the man for rape. Before the court, it was
ruled that because she agreed to have sex with the young man, the consent was
valid. This contrasts with the case of R
v Williams [1923] 1 KB 340
where one deceived a woman into receiving a surgery, only for the woman to
discover that it was a trick to lure her to have sex with him. In this case,
the act amounted to rape. The distinction between the two cases is that in the
former, one consented to the sex with the individual. In the latter, the person
did not consent to sex with the individual but receiving treatment. Thus, the
crux of the issue is whether one consents to sex with the individual.
With that said, does that mean that if one agreed to
have sex, it does not matter whether the sex in question is protected or
unprotected sex? No, it does not. Unprotected sex that is not consented to
is rape. Consent not only covers sex but the type of sex one
consents to. If one consents only to protected sex but opts to have unprotected
sex, then a rape has occurred. This is evident in the English case of R(F) v A [2013] EWHC 945, In this case, the parties agreed to have protected
sex. However, the accused decided to have unprotected sex instead, prompting
the complainant to allege rape. The ruling of the court was that the act was
indeed a rape due to the woman only consenting to protected sex. It should be
noted that this case is only of persuasive value in Zambia. There is yet to be
a case that deals with this issue.
It is also worth mentioning that consent can be
withdrawn during sexual intercourse. This entails that if one continues to
have sex after consent is withdrawn, then that act will amount to rape. This
was held in the case of Kaitamaki v
the Queen [1985] AC 147 where a woman withdrew her consent while the accused
was having sex with her. Despite that, the accused continued having sex with
her. The court ruled that continued sexual relations after withdrawal of
consent amounts to rape.
Defences for Rape
For every criminal act, there is a defence. For rape,
the only defence available is an honest belief that the other person has
consented to sex. This defence is discussed in the case of the DPP v Morgan [1976]
AC 182. In that case, the defendant
invited his friends to have sex with his wife. He told them that they should
not worry if the wife resists as that was her way of enjoying sex. So, all the
men in question had sex with the wife, including the husband, despite her
resistance. The wife reported the matter as a rape. The friends in question
were charged with rape while Morgan was charged with aiding and abetting rape
(this case was decided on prior to the change in English law concerning marital
rape). They were all convicted in the trial court. They then appealed.
Morgan and his co-accused, in their defence before the
court, argued that they genuinely believed that the wife consented to the
sexual intercourse. The court, in giving its verdict, stated that for one to be
convicted of rape, it must be shown that they had the mens rea for it. An
honest belief in one’s consent negates the charge of rape. That stated, the
court upheld the conviction of Morgan and his friends because their belief was
not justified.
Though the Zambian courts are yet to deal with a
scenario similar to the Morgan case, the principles there prove to be a
useful defence for suspected rapists and the courts of Zambia may uphold such a
defence.
Corroboration
Sexual offences are unique in their own way because it
relates to offences that take place in intimacy and privacy. Thus, it is very
difficult to determine who the perpetrator of the offence is. This is where
corroboration comes in.
Corroboration, as defined in the case of Emmanuel Phiri v the People [1982] ZR 77 (SCZ), is independent evidence that confirms the testimony of
the victim. The court further explained that corroboration is necessary in ensuring
that there are no false accusations. In addition, there must be corroboration
as to the nature of the act (whether there was penetration) and the identity of
the perpetrator. However, it was further stated that one may be convicted on uncorroborated
evidence, provided that the said evidence very overwhelming.
When it comes to the issue of corroboration, the court
must warn itself that it can convict someone on corroborated evidence, failure
to which, one cannot be convicted. However, in a situation that the court does
not warn itself, it will still convict if the evidence is overwhelming, as seen
in the case of Butembo v the People [1976]
ZR 193 (SCZ).
A lot more can be covered in relation to rape, but all
the information shared should give one a basic understanding of the offence of
rape.
BIBLIOGRAPHY
Statutes
The Penal Code, Chapter 87 of the laws of Zambia, sections 131A-133, 138(1)
Sexual Offences Act, 2003 of the Parliament of the United Kingdom, section 1(1).
Cases
R v Yohani Mporokoso [1939] ZMHCNR 18
R v R [1992] 1 AC 599
R(F) v A [2013] EWHC 945
DPP v Morgan [1976] AC 182
Emmanuel Phiri v the People [1982] ZR 77 (SCZ)
Butembo v the People [1976] ZR 193 (SCZ).
Kaitamaki v the Queen [1985] AC 147
R v Williams [1923] 1 KB 340
R v Lineker [1995] 3 All ER 6973
Sinyolo Muchiya v the People [2023] Appeal No. 139/2021 (CAZ)
R v Olugboja [1982] QB 320
Mupwaya R Chisepo v the People [2015] ZMSC 166, J6
Book
Simon E Kulusika, Criminal Law in Zambia: Law and Doctrine [Chiribwa Publishers, 2020] page 220
Journal
Southern Africa Litigation Centre titled, ‘Submission by the Southern Africa Litigation Centre on the Review of the Penal Code and Criminal Procedure Code’ [2021] 18 https://www.southernafricalitigationcentre.org/wp-content/uploads/2021/02/Review-of-the-Zambia-PC-and-CPC-February-2021.pdf accessed on 10/05/2024
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