RAPE
Section 130(1) of the Penal Code creates the offence of rape, thus it is an offence for a male person to rape a girl or a woman.
Section 130(2) of the Penal Code provides circumstances where a person can be said to have committed rape after having sexual intercourse with a woman or a girl.
Ø If a male person carnally knows a woman not being his wife, or she is his wife who is separated from him without her consent.
Ø If a woman consented to the sexual intercourse with that man and the consent was obtained by the using force, threats or intimidation or he put her in fear of death or of hurt or while she is in unlawful detention.
Ø If the women consented but the consent was obtained when she was of unsound mind due to intoxication induced by any drugs or matter or thing and administered to her by the man or other person. However if it is proved that there was prior consent between the two, and then the man will not be liable.
Ø When the woman gives the consent when the man knows that he is not her husband but the consent of woman was given because she has been made to believe that she is legally married to the man.
Ø If he has sexual intercourse with a girl who is under eighteen years of age. Here consent of a girl is immaterial. However the man will not be criminally liable if the woman is his wife who is fifteen or more years of age and they are not separated.
The Sexual Offences Special Provision Act No. 4/98 adds a new subsection that is section130 (3) under which the categories of men who are deemed to commit rape if they have sexual intercourse with a woman or girl under the following circumstances.
If a person takes advantage of his position to have sexual intercourse with a woman or girl, and commits rape on a girl or a woman in his official relationship or wrongfully restrains and commits rape on the girl or woman;
ü Being a person in a position.
ü Being on the management or on the staff of a remand home or other place of custody or a woman’s or children’s institution.
ü Being a traditional healer.
ü Being a religious leader.
The issue of traditional healer taking advantage of their position to have sexual intercourse with their female patients was discussed in the case of KABULUNGU JUMA V. R. [1991] T.L.R. 154,The appellant Kabulungu Juma, a medicine-man was convicted of the offence of rape and sentenced to 5 years imprisonment. However, it was established that the woman voluntarily consented to the intercourse believing that it was part of her treatment by the appellant of her ailment. On appeal:
“…A woman who is enslaved by strange ideas and beliefs who allows a medicine-man to have intercourse with her in the hope that the sexual act was the medicine-man's way of examining her pregnancy cannot be heard to complain of rape. …”
NB, this case was decided before the enactment of Act no. 4/98. Now the position is clear, if a medicine man takes advantage of his position and has sexual intercourse with his female patients he will be committing rape, because the woman consented to sexual intercourse believing that it is the way the medicine man’s treatment.
Another new feature of this Act is that it recognizes separations arranged by the family or clan members.
Ingredients of Rape
Having Unlawful Carnal Knowledge of a Woman or a Girl.
Unlawful carnal knowledge has a religious and historical background. It is unlawful when it takes place outside the marriage bonds. In the case of R.V. CHAPMAN [1959] 1QB 100, the accused was convicted for having unlawful sexual intercourse with a girl aged 16 years old. This case said that unlawful sexual intercourse means illicitly sexual intercourse i.e. sexual intercourse outside the bonds of marriage.
As a general rule a husband can’t rape his wife. But there are exceptions these are:
i) Where there is separation then if a husband has sexual intercourse with her he may be convicted of rape. The law recognizes even separation arranged by the family or clan members-S. 130(5) of the Penal Code.
ii) Another exception is where there is a decree nisi of divorce.
In the case of R. V. O’BRIEN [1974] 3 ALL E.R. 663, the court said that a decree nisi effectively terminated a marriage and thereupon the consent to marital intercourse impliedly given by a wife at the time of the marriage was revoked. It follow that the accused had committed the offence of rape if he had sexual intercourse with the wife after the date of the decree nisi without her consent.
For the purpose of proving rape, it is not necessary to prove the completion of the act by the emission of semen. Intercourse is deemed to be complete upon proved penetration only. Even slightest penetration is sufficient.
Furthermore, it is not necessary to adduce evidence of physical injuries to the body for the purpose of showing that sexual intercourse too place without consent-S. 130(4) (a)(b) of the Act No. 4/98 of the Penal Code. It is not necessary also to prove that the hymen was ruptured.
One can see that, penetration is an important ingredient of the commission of rape. In the case of FUNDI OMARI MADEGE V. R. (1970) H.C.D. No. 98, the accused was convicted of rape. Complainant stated that she was raped but no evidence as to what she meant. She had said “the accused threw me to the ground and threatened to kill me if I tried to raise an alarm, I was not wearing underwear”. The court said that
“…In a case of rape there must be evidence of penetration of penis into the vagina though emission of seeds is not necessary. The term rape as used by the complainant may amount to penetration or not…”
Without Her Consent
Lack of consent is on of the most important ingredients of the offence of rape. The essence of rape is the absence of real consent on the part of the woman or girl. Therefore in a situation where the woman consents to sexual intercourse what arises therefore cannot amount to rape. Earlier under Common Law, apart from lack of consent, there should be force or fraud. The current position is the emphasis on only one question: was the woman at the time of sexual intercourse consented to it?
It is not necessary for the prosecution to prove that what might otherwise appeared to have been consented was in reality merely submission induced by force, fear or fraud.
The distinction between consent and submission is still controversial in law, because a person submits where she/he yield or gives in to some pressure of some kind.
E.g. A, a woman with F a fiancée insists to have sex with A, F threatens that if this transaction doesn’t take place then engagement is broken, as a result A submits to have sex with F.
E.g. A held down by F, F holds the knife upon her throat, threatening to kill her if she doesn’t submits to sex.
In the first example there was no fear of her life while in the second there is fear of life. If the woman yields because the man promised to marry her that is not rape however there was submission.
The distinction between consent and submission is very controversial so judge or magistrates have to take each case so far as it is concerned.
In most cases, consent is one of the major defenses where a person charged with rape. If the accused can prove that there was consent, then there is no rape.
Confusion may cloud the whole concept of consent because different societies react differently in certain issues, in some societies there is a very strong belief that a woman will never say “yes” to sexual advances even if she means it.
Consent Obtained by Force or Fear of Bodily Harm
If a woman gives in under fear of coercion, this doesn’t amount to consent. In the case of MTUNDU CHILE AND OTHERS V. R. (1970) H.C.D. No. 304, the three appellants were convicted of burglary, stealing and rape and sentenced to a total of three years and twenty four strokes each. According to evidence given by a woman and her daughter, the appellants broke into their house, stole some articles and demanded to have sexual intercourse with the daughter who was in an advanced state of pregnancy. The mother, fearing for the life of her daughter, offered herself instead, whereupon each of the appellants had sexual intercourse with her in turn. On appeal
“…The women volunteered as a substitute for her daughter. Such consent is initiated by fears of her daughter’s death. Consent obtained by fear of bodily harm is equal to rape…” Consent Obtained By Means of False Representation as to the Nature of the Act
This ingredient is relevant in situations involving young girl who are incapable of forming an opinion on the nature of the act being performed or intended to be performed. In the case of R. V. WILLIAMS [1923] 1 K.B 340, the appellant was engaged to give lessons in singing and voice production to a girl of sixteen years of age. He had sexual intercourse under the pretence that her breathing was not quite right and that he had to perform an operation to enable her produce her voice properly. The girl submitted to what was done under belief, willfully and fraudulently induced by the appellant that she was medically and surgically treated by the appellant and not with intention that she should have sexual intercourse with her. On appeal:
“…Convicted for rape. A consent or submission obtained by fraud, it would not be a defense…”
Personating as a Husband
The man who induces a woman to have sexual intercourse with him by personating her husband commits rape. This is so because where a husband is personated there is also an error as to the nature of the transaction because this is no longer a marital intercourse but adultery. Sexual intercourse is a transaction in which personality is of supreme importance because consent to have sexual intercourse with say A is not to have sexual intercourse with B. therefore naturally, when a woman consented to have sex with her husband, she was not ready to have sex with the personator.
In the case of R. V. DEE (1884) 15 Cox 579, a married woman consented to have connection with the accused under the impression that he was her husband. On appeal the court held that;
“…The accused was guilty of rape…”
Rape Committed by Juvenile
Section 15(2) of the Penal Code-a person under ten years is not criminally responsible for any act or omission.
Section 15(2) of the Penal Code-under twelve years is not criminal responsible until it is proved that he had capacity to know that he ought not to do the act or make the omission.
Section 15(3) of the Penal Code- a male person under twelve years is presumed to be incapable of having sexual intercourse.
Corroboration in Rape
To corroborate means to confirm or give support to a statement, belief or theory. It has sometimes been suggested that the victim of rape-complainant-on the ground of experience regarded as an accomplice and therefore as a matter of practice her evidence needs corroboration by some other evidence.
In the case of NJUGUNA WANGURIUMU V. R. 20 E.A.C.A 196, the court said that:
“…Whilst it is not a rule of law that an accused charged with rape cannot be convicted on uncorroborated evidence of the prosecutrix, it has been the practice of the Eastern Africa Court of Appeal to look for and require corroboration in sexual offences…”
In ABBAS RAMADHAN V. R (1969) H.C.D. No. 226, it was held that:
“…The requirement of corroboration in not a rule of law but of practice though it has the elevated to almost a rule of law but not mandatory, nor its absence fatal to conviction the absence of corroboration…”
It is therefore necessary to examine evidence in this case very careful:
First in order to determine whether there is corroboration, second even if there is no corroboration whether conviction can nonetheless be sustained.
In the case of SHIKU SALEHE V. R [1987] T.L.R. 193, the appellant was charged with and convicted of the offence of rape contrary to sections 130 and 131 of the Penal Code. The conviction was based solely on visual identification and uncorroborated testimony of the raped victim. The issue on appeal was whether the conviction was proper. The court said:
“… (i) Before basing a conviction solely on evidence of visual identification, such evidence must remove all possibilities of mistaken identity and the court must be satisfied that the conviction is watertight; since the trial Magistrate considered these factors the conviction was proper.
(ii) In sexual offences, the court should warn itself of the dangers of acting on uncorroborated testimony of the complainant and having done so the court may convict if it is satisfied that the victim's evidence is true…”
The magistrate in this case gave these reasons on identifications; he noted that the victim----- (PW)
Ø Knew the appellant and his colleague before the incident.
Ø That the appellant himself admitted this fact.
Ø That the victim PW1 had been with the appellant in the pombe shop shortly ===before incident.
Ø That it was the moonlight night.
Ø That she saw the rapist very closely to her as they each lay on her chest in the act of intercourse.
Ø That she saw them for a longtime while they took turns in raping her.
Ø That she immediately gave a description of the attire of the appellant and also is names.
From the above cases we find that the court may convict a person without corroboration that it is fully satisfied that the complainant is telling nothing but the truth, and is full with her evidence.
Why Courts Have Been Insisting on Corroboration?
i) It is to avoid the danger of a woman telling false accusation for sexual ass----- where there has been none.
ii) Even where the woman has actual been raped, there is always the danger of ---identity as to the ravisher-poor light or fear etc.
iii) Even where the woman had consented to sexual intercourse, she may afterwards----varieties of reasons deny consent and accuse her partner for act of rape.
As a general rule of practice, the courts require corroboration of the evidence of a single witness and where the child of tender years gives evidence-S. 127 of the Tanzania Evidence Act.
However, section 127(7) TEA adds a new dimension on the evidence of a single witness or that of a child of tender years. When in any criminal proceedings involving sexual offence:
“…The only independent evidence is that of a child of tender years or is that of the victim of the sexual offence…”
The court is allowed to receive such evidence. it is to be noted that before receiving such evidence the court is required to assess the credibility of the child or the victim as the case may be on its merits.
After assessing the credibility of the child or victim, the court may convict on this evidence even where it is not corroborated.
The court before conviction is required to satisfy itself that the child or victim is telling nothing but the truth and shall record its reasons as to why it is of the opinion that the victim or child is telling the truth.
We see therefore that the magistrate is allowed to convict on the evidence of a child or victim only as giving reason as to why he believes that the child or victim is telling the truth, where he is in doubt then he will require some corroboration.
Punishment of Rape
Section 131(1) of the Penal Code (Act No. 4/98) provides that punishment for rape is life imprisonment
Ø In any case-not less than 30 years with corporal punishment and with fine.
Ø To pay compensation to the victim in respect of injuries caused to her-the amount to be fixed by the court.
Section 131(1) of the Penal Code (Act No. 4/98) if the offence is committed by a boy under 18 years.
Ø If first offender-corporal punishment only.
Ø If second offender- imprisonment for twelve months with corporal punishment.
Ø If third offender and recidivist-life imprisonment.
Section 131(3) of the Penal Code (Act No. 4/98) if the offence is committed to a girl less than ten years-life imprisonment.
Section 131A creates a new offence of gang rape. Punishment for gang rape is life imprisonment-section 131A(2) Act No. 4/98.
In imposing sentence, the courts apart from obeying the statutory requirements also do look at:
ü The nature of the circumstances under which the offence was committed.
ü The age of the accused.
ü The character of the accused-whether first offender or not.
In the case of AMIRI AHMED V. R (1968) H.C.D. No 329, the accused was convicted of rape. The version of the matter offered by the accused was that accused and complainant, a virgin of 15 or 16 years of age, had agreed to undress and to engage in some sexual intimacies with each other, the girl saying from the start that there would be no intercourse. After some time together, accused did in fact have intercourse with the girl, apparently having to overcome some resistance on her part with force. The court on appeal held that:
“…If the girls …. Laid down any condition … however foolish she was in allowing any sexual intimacy at all, the breach of such condition and penetration would constitute rape. That a woman may allow some form of sexual liberty to a man (be it little or great) does not entitle that man to proceed to have intercourse with her against (without) her will or consent. The Court must consider the fact that accused may have been entrapped by desires, which may have been inflamed by the recklessness and foolishness of the complainant. Some person may be charged of a rape but also found guilty of attempted rape or defilement or indecent assault…”
In R. V. AMIRI ALI (1969) H.C.D. No. 40, the accused was convicted of defilement. He was sleeping in the same room as the complainant, in the middle of the night went to her bed, and without even awakening her, undressed her and had sexual intercourse with her, not only without her consent but without her knowledge. She however awakened, raised the alarm, and the accused was apprehended on the spot. On appeal;
“…In this case the accused had temptation thrust upon him, in that sleeping together in the same room; he was affected by the proximity and tempted by the sight and presence of the sleeping girl so near him. In those circumstances… a short sharp lesson to teach the accused self-control would serve a much more useful purpose than sending him to prison where he will be exposed to hardened criminals. Sentence quashed, corporal punishment imposed instead…”
The accused was seventeen years old; the complainant was under twelve years. The sentence was two years imprisonment and six strokes.
Attempted Rape
Section 132(1) TPC creates the offence of attempted rape. The punishment is life imprisonment and in any other case liable to not less than thirty years with or without corporal punishment. A person is said to attempt to commit rape if with intent the manifests his intention by:
i) Threatening the girl or woman for sexual purpose.
ii) Being a person of authority or influence in relation to the girl or woman.
iii) By false representation.
iv) By personating her husband.
Section 132(3) TPC if the offence is committed in manner specified under (c) and (d) the accused is liable to imprisonment for life and in any other case to not less than ten years.
Defilement
Section 136(1) TPC which deals with defilement of girls under the age of sixteen years has been repealed. This offence is now dealt under section 130(2)e TPC Act No. 4/98.
This section adds extra element-any girl under the age of eighteen years. However, if the woman is married to the accused and they had not been separated then the offence is not committed. What is important here is that:
i) The woman must be under eighteen years.
ii) The accused must have unlawful sexual intercourse with the girl.
iii) If the woman is married to the man, then she must be fifteen years or more, and not separated from the man.
iv) Consent is immaterial in this offence.
We find thus, that the ingredients of this offence are the same as those of rape except:
i) The age of the complainant is immaterial, it is important that the prosecution must prove that the girl was under eighteen years.
ii) Consent here is immaterial, the person charged cannot rise the defence that the girl consented to the sexual intercourse. Even if the girl consented, the person charged will be held responsible. But if the man thought that the girl was a about the age of eighteen years, a defense of mistake of fact can be held.
In the case of ALLY ATHUMAN V. R. [1991] T.L.R. 59, the appellant was convicted for defilement of a girl under the age of 14 years contrary to section 136(1) of the Penal Code. The entire proceedings give the impression that the Magistrate proceeded on the assumption that the charge was one of rape contrary to sections 130 and 131 of the Penal Code. Appellant in his testimony didn’t deny having sexual intercourse with the complainant. His defense according to him is that, that was his girl friend for a long time and that was not the first time they had gone out for sexual intercourse. During the trial the age of the girl was not ascertained. On appeal:
i) The trial was a confused exercise, and cannot sustain the conviction entered.
ii) Rape and defilement are two entirely different offences, each one having its own ingredients requiring proof.
iii) While in rape consent or lack of it must be proved, to make it rape or not, in defilement it is immaterial whether the girl consented or not. In defilement there must be proof of age.
In the case of THOMAS EMMANUEL V. R. [1996] T.L.R. 373, PW1, Farida Mohamed was a tenant in a house where the appellant also lived. She had two-years old daughter, Buya Sylivester. On the material day, at about 11.30 HRS she was in her room. She heard her daughter, Buya crying in the appellant’s. she rushed there and found the appellant lying on top of the child. He was naked. She raised an alarm and one Masunga, PW2 was the first person to arrive at the scene. Semen looking staff was seen on the vagina of the child and on her buttocks. The appellant was arrested and subsequently charged with and convicted of defilement. The child was examined and PF3 showed
“…Hakuna jeraha lolote la kimwili au la sehemu za uzazi lililoonekana. Uchafu ulikutwa sehemu za kike umeonyesha mbegu za kiume…”.
On appeal against conviction and sentence it was contended that the evidence had not proven that the girl defiled, who was two years of age, had been penetrated. It was held:
- The evidence adduced did not show that there had been penetration: if there had been penetration, the complainant, being a very young girl, would have shown some injury. In the circumstances, therefore the full offence of defilement was not committed.
- The evidence did however prove the offence of attempted defilement c/s 136(2) TPC.
Defilement of Idiots and Imbecile
According to section 137TPC
1) It is an offence to have carnal knowledge with a n idiot or imbecile.
2) In the circumstances not amounting to rape.
3) Knowing at the time of the commission of the offence that the woman or girl is an idiot or imbecile.
Defense: Lack of knowledge at the time of commission.
Idiot: This is a private person for a company cannot be idiot. An idiot is a person who is ignorant. A person destitute of reason or intellectual powers with very limited intelligence that cannot think or behave properly or normal.
In law: Idiot is a person in whose case there exists mental defectiveness of such a degree that he is unable to guard himself against common physical dangers.
Imbecile: mental weak, physical weak, a person who though mental deficient show signs of rudimental intelligence, a person with abnormal low intelligence.
In law: Imbecile is the person in whose case there exists mental defectiveness though not amounting to idiocy is yet so pronounced that is incapable of managing himself or his affairs. Therefore when a person is destitute of strength of either body or mind is called an imbecile.
Hence: an idiot is a person who is born without mind while an imbecile is born with full mental capacity but loses that later.
In the case of WILSON V. COMMONWEATH (1942), W was fixing a flat tire. A, a lady of 44 years called him and assisted him to enter a house through a window. Brothe-in-law of a woman entered the room and found her having sexual intrcouse with W. W was charged and convicted of rape. During the trial the relative testified that she could not carry on an intelligent conversation, she had never learned to read and write. She was described as a men crazy and that she could hang out on the window and call to men. On appeal W contended that he did not have reasonable ground to make him believe that this lady was incapable of consenting.
“…Sexual intercourse with an idiot or insane woman is not rape unless the man knows that she is insane or an idiot and takes advantage of that fact to accomplish his purpose…”
Defilement by Husband of a Wife Under Fifteen Years
If a man is married to a girl under fifteen years, has or attempt to have carnal knowledge of the girl whether with or without her consent is guilty of an offence. Punishment is ten years.
If a person is a father or mother, or any person having the custody of a girl under fifteen years, permits such a girl or parts with the possession or disposes her with the intention that she shall be carnally known by (having sexual intercourse with) her husband, whether with or without her consent, while still under fifteen years is guilty of an offence. Punishment is ten years imprisonment-S. 138TPC.
In the case of R V. JUMA MOHAMED (1970) H.C.D. No. 154, the accused was convicted on his own plea of permitting the defilement by a husband of a wife under twelve, c/s 138 (2), Penal Code. The accused was the father of Tabu, did dispose her to be married to Tuhuba knowing it to be likely that the girl was still under the age. The court held:
“…His plea didn’t refer to any intention on his part to have the girl carnally known by her husband nor did he admit that it was likely to happen. He didn’t intend his daughter to have carnal knowledge. ‘Intention is an ingredient of the offence which had to be proved. Accused said I married the husband not to sleep with her until she was grown up…”
Section 138(5) TPC
No person shall be convicted if the court is of the opinion that the girl has attained the age of 15 years.
If the court is of the opinion that the accused had reasonable cause to believe and did in fact believed that the girl was or above fifteen years.
Section 138(6) TPC
Marriage is allowed if the person is of African or Asiatic descend, provided that it is not intended to be consummated before the girl attain the age of fifteen.
Incest
Incest by Male
Any male person commits the offence of incest if he has prohibited sexual intercourse with a female person, who is to his knowledge his granddaughter, daughter, sister or mother.
In cases involving incest, consent is immaterial thus a person charged cannot raise the defense that the female person consented-S. 158(2) TPC.
If the female is less than eighteen years, if (must be) convicted to imprisonment for a term not less that thirty years.
If the female is eighteen years or more (must be convicted) to imprisonment for not less than twenty years.
Incest by Female
Any female person of or above the age of eighteen years who with consent permits her grandfather, father, brother or son to have sexual intercourse with her, commits the offence of incest.
To amount to incest, a female person must have with consent permits and with full knowledge that the male person is her grandfather, father, brother or son.
If convicted she shall be liable to imprisonment for life. Or, imprisonment for not less than thirty years.
In addition she may be ordered to pay compensation for the amount to be determined by the court.
If the male person is below ten years, to imprisonment for not less than thirty years.
No prosecution for the offence under section 158 and 160 TPC of the accused without the consent of the DPP-Section 162 TPC.
Sexual Assault on Person and Indecent Assault on Women
Section 135(1) TPC has been amended to cover both sexes. Any person who:
i) Utters any word or sound.
ii) Makes any gestures.
iii) Exhibits any object.
Intending such words, sound be heard or gestures or object to be seen by that person, commits the offence of sexual assault.
If convicted he will be liable to imprisonment for a term not exceeding five years or fine not exceeding three hundred five years of fine not exceeding three hundred thousand shillings or to both.
If it relate to a boy or girl under or less than eighteen years it shall be no defense that the boy or girl consented.
