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Chapter 41: Defilement

Table Of Contents  

[41.0] Introduction 

This chapter will examine the offences of: 

·                     'Defilement Of Girls Under Thirteen Years Of Age', as provided for by section 142 of the Penal Code (Ch. 26); and 

·                     'Defilement Of Girls Between Thirteen And Fifteen Years Of Age, Idiots & Imbeciles', as provided for by section 143 of the Penal Code (Ch. 26). 

When interpreting any section of the Penal Code (Ch. 26), section 3 must be considered. That section states: 

'This Code shall be interpreted in accordance with the Interpretation and General Provisions Act and the principles of legal interpretation obtaining in England, and expressions used in it shall be presumed, so far as is consistent with their context, and except as may be otherwise expressly provided, to be used with the meaning attaching to them in English criminal law and shall be construed in accordance therewith.' (emphasis added) 

See: Sexual Offences Act 1956 (UK), sections 5, 6, 7 & 9. 

Section 168 of the Penal Code (Ch. 26) states: 

'When a person is charged with the defilement of a girl under the age of fifteen years and the court is of the opinion that he is not guilty of that offence but that he is guilty of an offence under one of the sections 141(1) ['Indecent Assaults On Females'], 142 ['Defilement Of Girls Under Thirteen Years Of Age'] and 145 ['Procuring Defilement Of Woman By Threats Or Fraud Or Administering Drugs'] of the Penal Code, he may be convicted of that offence although he was not charged with it.' [words in brackets added] 

Section 169 of the Penal Code (Ch. 26) states: 

'When a person is charged with the defilement of a girl under the age of thirteen years and the court is of the opinion that he is not guilty of that offence but that he is guilty of an offence under one of the sections 141(1) ['Indecent Assaults On Females'], 143 ['Defilement Of Girls Between Thirteen And Fifteen Years Of Age, Idiots And Imbeciles'] and 145 ['Procuring Defilement Of Woman By Threats Or Fraud Or Administering Drugs'] of the Penal Code, he may be convicted of that offence although he was not charged with it.' [words in brackets added] 

See also: Criminal Procedure Code (Ch. 26), sections 159 & 175.

[41.1] Defilement Of Girls Under 13 Years

[41.1.1] Offences 

Section 142 of the Penal Code (Ch. 26) states (in part): 

'(1) Any person who has unlawful sexual intercourse with any girl under the age of thirteen years is guilty of a felony, and shall be liable to imprisonment for life. 

(2) Any person who attempts to have unlawful sexual intercourse with any girl under the age of thirteen years is guilty of a misdemeanour, and shall be liable to imprisonment for two years.' 

[41.1.2] Wording Of Charges 

Section 142(1) 

'[Name of Defendant] at [Place] on [Date] did have unlawful sexual intercourse with a girl namely [Name Of Complainant] under the age of thirteen years of age to wit [Specify the Age of the Girl].' 

Section 142(2) 

'[Name of Defendant] at [Place] on [Date] did attempt to have unlawful sexual intercourse with a girl namely [Name Of Complainant] under the age of thirteen years of age to wit [Specify the Age of the Girl].'

[41.1.3] Elements 

Section 142(1) 

A. Defendant 

B. Place 

C. Date 

D. Unlawful 

E. Sexual Intercourse 

F. Complainant 

G. Under The Age Of Thirteen Years

Section 142(2) 

A. Defendant 

B. Place 

C. Date 

D. Attempt 

E. Unlawful 

F. Sexual Intercourse 

G. Complainant 

H. Under The Age Of Thirteen Years

[41.2] Defilement Of Girls Between 13 & 15 Years, Idiots & Imbeciles

[41.2.1] Offences

Section 143 of the Penal Code (Ch. 26) states (in part): 

'(1) Any person who – 

(a)                has or attempts to have unlawful sexual intercourse with any girl being of or above the age of thirteen years and under the age of fifteen years; or 

(b)               has or attempts to have unlawful sexual intercourse with any female idiot or imbecile woman or girl under circumstances which do not amount to rape but which prove that the offender knew at the time of the commission of the offence that the woman or girl was an idiot or imbecile, 

shall be guilty of a misdemeanour, and shall be liable to imprisonment for five years: 

[…] 

(2) No prosecution shall be commenced for an offence under paragraph (a) of subsection (1) of this section more than twelve months after the commission of the offence.' (emphasis added) 

[41.2.2] Wording Of Charges 

Section 143(a) 

'[Name of Defendant] at [Place] on [Date] did [have or attempt to have] unlawful sexual intercourse with a girl namely [name of the complainant] being of the age of or above the age of thirteen years and under the age of fifteen years to wit [specify the age of the complainant].' 

Section 143(b) 

'[Name of Defendant] at [Place] on [Date] did [have or attempt to have] unlawful sexual intercourse with [a female idiot or an imbecile (woman or girl)] namely [name of the complainant] under circumstances which did not amount to rape but which prove that [insert the name of the Defendant] knew at the time of the commission of the offence that the said [woman or girl] was an [idiot or imbecile].'

[41.2.3] Elements 

Section 143(a) 

A. Defendant 

B. Place 

C. Date 

D.        [i] Have; or 

[ii] Attempt To Have 

E. Unlawful 

F. Sexual Intercourse 

G. Complainant 

H. Of The Age Of Or Above The Age Of Thirteen Years And Under The Age Of Fifteen Years

Section 143(b) 

A. Defendant 

B. Place 

C. Date 

D.        [i] Have; or 

[ii] Attempt To Have 

E. Unlawful 

F. Sexual Intercourse 

G.        [i] Female Idiot; 

[ii] Imbecile Woman Or Girl 

H. Under Circumstances Which Did Not Amount To Rape But Which Prove That The Defendant Knew At The Time Of The Commission Of The Offence That The Said Complainant Was An Idiot Or Imbecile

[41.3] Dates Of Offences 

The element regarding the 'Dates Of Offences Of A Sexual Nature' is examined commencing on page 668. The law relating to 'Dates Of Offences Generally' is examined commencing on page 85. 

[41.4] Unlawful 

It is no defence to the charges for an offence under sections 142 or 143(1)(a) to prove that the girl consented to the act, see sections 142(3) and 143(3) of the Penal Code (Ch. 26). 

[41.5] Attempt 

The law relating to 'Attempts To Commit Offences' is examined commencing on page 398. 

[41.6] Sexual Intercourse 

The element 'Sexual Intercourse' is examined commencing on page 631. 

[41.7] Proof Of Age 

The law relating to 'Proof Of Age' is examined commencing on page 702. 

[41.8] Idiot 

The term 'Idiot' is not defined in either the Penal Code (Ch. 26) or the Interpretation & General Provisions Act (Ch. 85). 

An 'idiot' is a person in whose case there exists mental defectiveness of such a degree that he/she is unable to guard himself/herself against common physical dangers, see 'Halsbury's Laws of England', 2nd ed., Vol. 21, page 278 & R v Jeffrey Archibold Lindsay (1984) 15 ACrimR 179 at page 181. 

The opinion of an appropriate expert would be necessary to prove that a particular complainant was an 'idiot'. 

The law relating to 'Opinion Evidence - Experts' is examined commencing on page 202. 

[41.9] Imbecile 

The term 'Imbecile' is not defined in either the Penal Code (Ch. 26) or the Interpretation & General Provisions Act (Ch. 85). 

An 'imbecile' is a person in whose case their exists mental defectiveness which, though not amounting to idiocy, is yet so pronounced that they are incapable of managing themselves or their affairs, see 'Halsbury's Laws of England', 2nd ed., Vol. 21, page 278. 

The opinion of an appropriate expert would be necessary to prove that a particular complainant was an 'imbecile'. 

The law relating to 'Opinion Evidence - Experts' is examined commencing on page 202.

[41.10] Corroboration 

The law relating to the need for 'Corroboration' in respect of 'offences of sexual nature generally' is examined commencing on page 668. 

[41.11] Young Complainants 

The law relating to the evidence of 'Young Complainants Generally' is examined commencing on page 699. 

[41.12] Evidence Of Spouses 

The law relating to the 'Competency Of Spouses' is examined commencing on page 282. 

[41.13] Defence 

As regards an offence under section 142 of the Penal Code (Ch. 26), section 167 of that Code applies. That section states: 

'Except as otherwise expressly stated, it is immaterial in the case of the offences referred to in this Part of this Code ['XVI – Offences Against Morality'] committed with respect to a woman or girl under a specified age, that the accused person did not know that the woman or girl was under that age, or believed that she was not under that age.' [words in brackets added] 

Section 143(1) of the Penal Code (Ch. 26) states (in part): 

'Provided that it shall be a sufficient defence to any charge under paragraph (a) of this subsection [, referring to subsection (1),] if it shall be made to appear to the court before whom the charge is brought that the person so charged had reasonable cause to believe and did in fact believe that the girl was of or above the age of fifteen years.' (emphasis added) [words in brackets added] 

The onus is on the defendant to prove such a defence on the 'balance of probabilities'. 

In R v Banks [1916] 2 KB 621; (1916) 12 CrAppR 74 Avory J, delivering the judgment of the Court, stated at pages 622 & 75 respectively: 

'In our judgment the phrase "had reasonable cause to believe" means "had reasonable cause to believe and did in fact believe, ie., that the person charged believed on reasonable grounds that the girl was at least sixteen [fifteen] years of age.' [word in brackets added] 

See also: R v Harrison & others (1938) 26 CrAppR 166; [1938] 3 AllER 134; R v Forde [1923] 2 KB 400; (1923) 17 CrAppR 99 & B (A Minor) v Director of Public Prosecutions [2000] 2 CrAppR 65; [2000] 2 WLR 452; [2000] 2 AC 428; [2000] 1 AllER 833; [2000] CrimLR 403. 

Refer also to the chapter which examines 'Proof Of Issues' commencing on page 68 and particularly to the section which examines 'Negative Averments' on page 83.

[41.14] Jurisdiction 

The jurisdiction of the Courts in respect of the offence of 'Defilement' is examined commencing on page 14. 

The law relating to 'Sentencing' in respect of that offence is examined commencing on page 918.

[41.15] Related Offences 

Refer to 'Offences Against Morality' as provided for in Part XVI of the Penal Code (Ch. 26) from section 136 to 168. 

The offences of: 

·                     'Rape' and 'Attempted Rape', section 141(1) of the Penal Code (Ch. 26) are examined commencing on page 629; 

·                     'Indecent Assault', sections 142 & 143 of the Penal Code (Ch. 26) is examined commencing on page 642; 

·                     'Incest By Males', section 163 of the Penal Code (Ch. 26) is examined commencing on page 656; and 

·                     'Incest By Females', section 164 of the Penal Code (Ch. 26) is examined commencing on page 662.