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Criminal Law in Solomon Islands

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Chapter 42: Incest by Males

Table Of Contents  

[42.0]

Introduction

[42.1]

Offences

[42.2]

Wording Of Charges

[42.3]

Elements

[42.4]

Dates Of Offences

[42.5]

Sexual Intercourse

[42.6]

Attempt

[42.7]

Proof Of Relationship

[42.8]

Proof Of Age

[42.9]

Corroboration

[42.10]

Young Complainants

[42.11]

Evidence Of Spouses

[42.12]

Jurisdiction

[42.13]

Related Offences

 

INCEST BY MALES

 

[42.0] Introduction 

This chapter will examine the offences of: 

·                     'Incest By Males'; and 

·                     'Attempted Incest By Males', 

as provided for by section 163 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), section 10. 

See also: Criminal Procedure Code (Ch. 7), section 159 & 175. 

Section 166 of the Penal Code (Ch. 26) states: 

'No prosecution for an offence under sections 163 or 164 shall be commenced without the sanction of the Director of Public Prosecutions.' 

In that regard refer also to the section which examines 'Decision To Institute Proceedings' commencing on page 112.

 

[42.1] Offences 

Section 163 of the Penal Code (Ch. 26) states (in part): 

'(1) Any person who has sexual intercourse with a female person, who is to his knowledge his granddaughter, daughter, sister or mother, is guilty of a felony, and shall be liable to imprisonment for seven years. 

Provided that if it is alleged in the information or charge and proved that the female person is under the age of thirteen years, the offender shall be liable to imprisonment for life. 

[…] 

(3) If any male person attempts to commit any such offence as aforesaid he shall be guilty of a misdemeanour.'

 

[42.2] Wording Of Charges 

Section 163(1) 

'[Name of Defendant] at [Place] on [Date] did have sexual intercourse with a female person namely [specify the name of the female] who was to his knowledge his [granddaughter, daughter, sister or mother].'

 

Include the following circumstance of aggravation: 

'and the said [name of the female] was under the age of thirteen years to wit [specify the age of the female].'

 

Section 163(3) 

'[Name of Defendant] at [Place] on [Date] did attempt to have sexual intercourse with a female person namely [specify the name of the female] who was to his knowledge his [granddaughter, daughter, sister or mother].'

 

[42.3] Elements 

Section 163(1) 

A. Defendant 

B. Place 

C. Date 

D. Sexual Intercourse 

E. Female Person 

F. Who Was To His Knowledge His

[i] Granddaughter; 

[ii] Daughter; 

[iii] Sister; or 

[iv] Mother 

Include the following circumstance of aggravation: 

G. Female Person 

H. Under The Age Of Thirteen Years

 

Section 163(3) 

A. Defendant 

B. Place 

C. Date 

D. Attempt 

E. Sexual Intercourse 

F. Female Person 

G. Who Was To His Knowledge His

[i] Granddaughter; 

[ii] Daughter; 

[iii] Sister; or 

[iv] Mother

 

[42.4] 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.

 

[42.5] Sexual Intercourse 

The element 'Sexual Intercourse' is examined on page 631

Section 163(2) of the Penal Code (Ch. 26) states: 

'It is immaterial that the sexual intercourse was had with the consent of the female person.'

 

[42.6] Attempt 

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

 

[42.7] Proof Of Relationship 

Section 165 of the Penal Code (Ch. 26) states: 

'In the two last preceding sections the expressions "brother" and "sister" respectively include half – brother and half – sister, and the provisions of the said sections shall apply whether the relationship between the person charged with an offence and the person with whom the offence is alleged to have been committed is or is not traced through lawful wedlock'. 

There must be evidence to prove 'beyond reasonable doubt' the relationship between the defendant and the complainant, see R v Jones (1933) 24 CrAppR 55 & R v Hemmings (1939) 27 CrAppR 46. 

In R v Carmichael (1940) 27 CrAppR 183 Charles J, delivering the judgment of the Court, held at page 190: 

'In our opinion whether A is B's daughter is totally distinct from the question whether to B's knowledge she is his daughter. Knowledge is vital to the commission of the offence.'

 

[42.8] Proof Of Age 

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

 

[42.9] Corroboration 

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

 

[42.10] Young Complainants 

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

 

[42.11] Evidence Of Spouses 

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

 

[42.12] Jurisdiction 

The jurisdiction of the Courts in respect of the offence of 'Incest By Males' is examined commencing on page 14

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

Section 163(4) of the Penal Code (Ch. 26) states: 

'On the conviction before any court of any male person of an offence under this section, or of an attempt to commit the same, against any female under the age of eighteen years, it shall be in the power of the court to divest the offender of all authority over such female, and, if the offender is the guardian of such female, to remove the offender from such guardianship, and in any such case to appoint any person or persons willing to take charge of such female, to be the guardian or guardians of such female during the minority or any less period, and the court may at any time vary or rescind the order by the appointment of any other person as such guardian, or in any other respect.'

 

[42.13] 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 137 of the Penal Code (Ch. 26) are examined commencing on page 629

·                     'Indecent Assault', section 141(1) of the Penal Code (Ch. 26) is examined commencing on page 642

·                     'Defilement', sections 142 & 143 of the Penal Code (Ch. 26) is examined commencing on page 647; and 

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


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