NAME:

LAURANCE NAMUKAMBA

STUDENT NO:

LLB 1513380

PROGRAME:

BACHELOR OF LAWS

COURSE:

CRIMINAL LAW

LECTURER:

MS. LUMBIWE MWANZA

ASSIGNMENT:

MODE OF STUDY: DISTANCE

Introduction
One of the notions that the Judiciary in Zambia have been grappling with is the notion of sexual
offences. The purpose of this essay is to discuss sexual offences in the Zambian criminal law
jurisdiction that can be committed by both females and males. It doing so, it will cite relevant
sections of the Penal Code and also some relevant case law in support of the notion. Thereafter, a
conclusion shall be drawn.
Section 132 of the Penal Code1 stipulates that rape is an unlawful carnal knowledge of a
woman or girl, without her consent, or with her consent, if the consent is obtained by:
i)
ii)
iii)
iv)
v)

Force
means of threats or intimidation of any kind
fear of bodily harm
means of false representations as to the nature of the act
personating the womans husband

And once a person is convicted of the offence of rape, he is liable to imprisonment for life. The
same applies to a felony of attempted rape.2 But before one can be convicted of the offence or
rape, the following elements need to be proved:
i)

Actus reus
there must be penetration
it must be against the will of a woman or girl

The case of Emmanuel Phiri v. The People3 is an example of where a man had carnal
knowledge of a lady by threatening her with death if she refused. He did so without her consent
to the sexual act, and therefore is was held that it was rape. Another element that must be proved
is:
ii)

Mens rea
there must be an intention to have intercourse
recklessness

Penal Code Act, Chapter 87 of the Laws of Zambia.

Ibid, Section 133 and 134.
3
[1982] ZR 77 SC.
2

It must be noted here that, only a woman or a girl is capable of being raped, for it requires
penetration and only male persons are capable of doing that.
Statutorily, indecent assault under section 137 subsection (1) of the Penal Code, 4 is said to have
been committed when:
Any person who unlawfully and indecently assaults any woman or girl is guilty of a
felony
The elements of indecent assault are:
(1) that the accused was assaulted in a certain manner.
(2) that the acts must be done with the intent to gratify the lust or sexual desires of the
accused.
A case of Faulkner v Talbot5 is an example of an indecent assault case. It was mentioned in this
case that, one does not necessarily have to use physical force, and so any touching will suffice.
The facts of the case are that the babysitter invited a 14 year-old boy to join her in bed. She tried
to hold the boy inappropriately but he would not let her. She then pulled the boy onto her. She
was charged with indecent assault. It is seen from the above cited case that this offence can be
committed by either sex.
Section 138 of the Penal Code,6 provides that:
Any person who unlawfully and carnally knows any child commits a felony and liable,
The elements to be proved in this offence are:
Actus reus
i)
ii)

sexual intercourse
a child under the age of 16 years

Mens rea
i)
ii)

intention
recklessness

Ibid.
Faulkner v Talbot [1981] 3 All ER 468
6
Ibid, n 1.
5

The case of Gift Mulonda v. The People7 cements this fact. The substance of the case is that the
accused was charged with an offence of defiling a girl under the age of 16 years contrary to
section 138 (1) of the Penal Code. 8 From the foregoing, it can be deduced that the age of the
victim in defilement cases is crucial and a very essential ingredient of the charge.
The punishment for a defilement case is:
a) sentence of 15 years minimum and maximum life where offender is an adult
b) where the offender is of mature age but not an adult, it is 12 years to 18 years
Under the Penal Code9 in the Zambian jurisdiction, there are two types of defilement offences.
One has already been dealt with above, the other is defilement of an imbecile. Defilement of a
mentally ill person is provided for under section 139 as follows:
Any person who, knowing a child or other person to be an imbecile or person with
mental illness, has or attempts to have unlawful carnal knowledge of that chills or other
person in circumstance not amounting to rape, but which prove that the offender knew at
the time of the commission of the offence that the child or other person was an idiot or
imbecile commits a felony
This is having carnal knowledge knowingly with a known idiot or imbecile. These elements will
have to be proved for a case to succeed:
i)
ii)
iii)
iv)

sexual intercourse
child/adult must be an imbecile or
child/adult must be mentally ill
there must be knowledge the defiled person is either an imbecile or mentally ill

This offence is capable of being committed by either sex. The punishment for this offence is a
minimum of 14 years and maximum of life imprisonment.
The Penal Code10 under section 159 in subsection (1) and (2) provides:

Gift Mulonda v The People [2004] Z.R. 135 (S.C)

Ibid, n 1.
9
Ibid, n 1.
10
Ibid, n 1.
8

Any male person who has carnal knowledge of a female person who is to that persons
knowledge his grandmother, mother, sister, daughter, granddaughter, aunt or niece commits a
felony
It goes on to add that:
Any female person who has carnal knowledge of a male person who is to that persons
knowledge her grand-father, father, brother, son, grand-son, uncle or nephew commits a felony
For anyone one to be convicted of this offence, the prosecution will have to prove that the
defendant:
i)
ii)
iii)

knowingly
married or inflicted sexual penetration on or inflicted sexual intrusion on
a person within the degree of consanguinity where marriage is prohibited

Mutual consent of the parties involved is not an essential element to the offence of incest. If the
defendant charged has sexual intercourse with a female related to him within the degree of
consanguinity, then such a person is guilty of the crime of incest. It is immaterial that whether
the intercourse was with or without the consent of such a female. It should be noted that if a
woman is too young, regardless of her assent to the incestuous relationship, she cannot be said to
have willfully and willingly joined in the intercourse, therefore she is not an accomplice.
If any of the defendants is found guilty of the crime of incest, they are liable upon conviction for
a term of not less than twenty years may be liable to imprisonment for life.
Section 15511 provides that:
Any person whoa) has carnal knowledge of any person against the order of nature; or
b) has carnal knowledge of an animal; or
c) permits a male person to have carnal knowledge of him or her against the order of
nature;
commits a felony
The elements of the crime of unnatural offences are:
11

Ibid, n 1.

a)
b)
c)
d)

that the defendant had carnal intercourse with a man, woman, or animal
that such intercourse was against the order of nature
that the accused did the act voluntarily
that there was penetration

Understandably, such unnatural offences would constitute, bestiality, homosexuality, cunnilingus

and fellatio.
Section 15612 concludes as follows:
Any person who attempts to commit any of the offences specified in section one hundred
and fifty-five commits a felony and is liable, upon conviction of not less than seven years
but not exceeding fourteen years.
If the prosecution team manages to prove all the above elements in the crime of unnatural
offences, the accused would be liable to not less than seven years but not exceeding fourteen
years. From the sentence one can tell how grave this offence is in the Zambian jurisdiction of
criminal law.
Conclusion
The essay has shown the various sexual offences prohibited in the Zambian criminal law
jurisdiction. Some of these offences are capable of being committed by either sex and some due
to the technicalities of the offences, can only be committed by the male folk. While the mens rea
requirement in some cases is straightforward and is fulfilled if a person commits the act
voluntarily, the actus reus is problematic due to the uncertainty of certain key terms. The term
carnal knowledge of him or her against the order of nature which is not defined in the Penal
Code, leaves many students and practitioners alike, guessing what this might possibly mean.

Bibliography
Statutes
The Penal Code Act, Chapter 87 of the Laws of Zambia.

12

Ibid, n 1.

Case Law
Emmanuel Phiri v The People [1982] Z.R. 77 (S.C)
Faulkner v Talbot [1981] 3 ALL ER 468
Gift Mulonda v The People [2004] Z.R. 135 (S.C)