Uganda v. Kusemererwa

The issue in this case is the distinction between rape, simple defilement, and aggravated defilement in the Uganda Penal Code.

The crime of defilement, created in 1990, prohibits having or attempting sexual intercourse with a girl under 18 years of age and carries a maximum penalty of life imprisonment.

Defilement is considered aggravated if the girl is under 14 years old, the offender has HIV/AIDS, the offender is the victim’s parent or guardian, the girl has a disability, or the offender is a serial offender, and it carries a maximum penalty of death. There is no consent requirement for defilement because children cannot consent to sexual intercourse.

The Penal Code section prohibiting rape describes it as “unlawful carnal knowledge of a woman or girl without her consent” (emphasis added) or if consent is obtained through any force, threat, or intimidation. The maximum penalty for rape is death. The victim in this case was 16 when the defendant had unlawful carnal knowledge of her without her consent.

The defendant argued that he should be charged with simple defilement instead of rape because rape only applies to an adult woman who can give consent. The State argued that the statutes give the State discretion to choose between the charges.

Citing other cases in which the State charged for rape instead of defilement because the defendant used excessive force, the State argued that this case the charge of rape was justified. The Court found that these cases were decided before Parliament had fully settled the statutory details of rape, simple defilement, and aggravated defilement. Now that the law is settled, the law does not allow rape charges for children because of the element of consent; unlawful sexual intercourse with children must be prosecuted as defilement.