The offence of rape, ingredients and punishment.

Section 130(1) of the Penal Code criminalizes rape, making it an offence for a male person to engage in sexual intercourse with a woman or girl without her consent. Section 130(2) elaborates on the conditions that qualify as rape:

- When a man has sexual intercourse with a woman who is not his wife or they are separated, without her consent.

- When consent is obtained through force, threats, intimidation, or if the woman is unlawfully detained.

- When consent is obtained while the woman is intoxicated or mentally incapacitated, and such condition is caused by the man or someone else. However, if prior consent exists, the man is not liable.

- When the woman consents believing she is married to the man, but he knows otherwise.

- Sexual intercourse with a girl under 18 is considered rape regardless of her consent, unless the girl is his wife, 15 years or older, and they are not separated.

The Sexual Offences Special Provision Act No. 4/98 expands this by adding Section 130(3), covering situations where men in positions of authority, such as traditional healers or religious leaders, exploit their status to engage in sexual intercourse with women or girls under their care. This includes positions in remand homes or institutions for women or children.

The case of Kabulungu Juma v. R. [1991] T.L.R. 154 highlighted the misuse of such positions. The appellant, a traditional healer, was convicted of rape, though the woman initially consented, believing the act was part of her treatment. This case, however, predates Act No. 4/98, which now clearly defines such acts as rape.

Regarding the elements of rape, unlawful carnal knowledge refers to sexual intercourse outside marriage. In R. v. Chapman [1959], unlawful intercourse was defined as that which occurs outside the marital bond. Though a husband generally cannot be charged with raping his wife, exceptions exist in cases of separation or a decree nisi of divorce, as seen in R. v. O’Brien [1974], where a decree nisi terminates implied marital consent.

Penetration, not the emission of semen, is necessary to establish the act of rape. Even slight penetration suffices, and physical injury is not required to prove non-consensual intercourse (Fundi Omari Madege v. R.(1970)).

The absence of real consent is crucial in determining rape. Consent obtained by force, fear, or submission does not constitute real consent. Cases like Mtunduchile v. R. (1970) confirm that consent given under fear or coercion is considered rape. Additionally, false representations about the nature of the act can vitiate consent, as in R. v. Williams [1923], where consent was fraudulently obtained under the guise of medical treatment.

A man impersonating a husband and having sexual intercourse with a woman also commits rape, as established in R. v. Dee (1884).

Juveniles under the age of 10 are not criminally responsible for rape under Section 15(1) of the Penal Code, while those under 12 may be presumed incapable unless proven otherwise.

Corroboration, although not legally required, is often sought in rape cases. The case of Shiku Salehe v. R. [1987] T.L.R. 193 illustrates that a conviction based on uncorroborated testimony is permissible if the court is convinced of the truthfulness of the victim’s account.

The punishment for rape, under Section 131(1), can be life imprisonment, with a minimum of 30 years, corporal punishment, and fines. Section 131(2) provides lighter penalties for juvenile offenders, while gang rape, under Section 131A, is punishable by life imprisonment.

In sentencing, courts consider factors such as the circumstances of the offence, the age of the accused, and whether they are a first-time offender. The case of Amiri Ahmed v. R. (1968) demonstrates that even when a girl consents to some level of intimacy, forced sexual intercourse still constitutes rape.