Home | Databases | WorldLII | Search | Feedback | Help Criminal Law in Solomon Islands

Chapter 43: Incest by Females

Table Of Contents  

[43.0] Introduction 

This chapter will examine the offences of 'Incest By Females', as provided for by section 164 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 11. 

Section 167 of the Penal Code (Ch. 26) states: 

'When a person is charged with an offence under section 164 of the Penal Code 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 142 ['Defilement of Girls Under Thirteen Years Of Age'] and 143 ['Defilement of Girls Between Thirteen And Fifteen Years Of Age, Idiots & Imbeciles'] 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. 7), sections 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.

[43.1] Offence 

Section 164 of the Penal Code (Ch. 26) states: 

'Any female person of or above the age of fifteen years who with consent permits her grandfather, father, brother or son to have sexual intercourse with her (knowing him to be her grandfather, father, brother or son, as the case may be) shall be guilty of a felony, and shall be liable to imprisonment for seven years.'

[43.2] Wording Of Charge 

'[Name of Defendant] at [Place] on [Date] [of or above] the age of fifteen years with consent did permit her [grandfather, father, brother or son] namely [specify the name of the (grandfather, father, brother or son)] to have sexual intercourse with her knowing that [Insert the name of the Defendant] was her [grandfather, father, brother or son].'

[43.3] Elements 

A. Defendant 

B. Place 

C. Date 

D.        [i] Of; or 

[ii] Above 

The Age Of Fifteen Years 

E. Consent 

F. Permit 

G.        [i] Grandfather; 

[ii] Father; 

[iii] Brother; or 

[iv] Son 

H. Sexual Intercourse With Her 

I. Who Was To Her Knowledge Her

[i] Grandfather; 

[ii] Father; 

[iii] Brother; or 

[iv] Son

[43.4] 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.

[43.5] Permit 

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

The 'natural and ordinary' meaning of that term in the context of this section would mean to allow or to give permission.

[43.6] Sexual Intercourse 

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

[43.7] 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'.

[43.8] Proof Of Age 

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

[43.9] Corroboration 

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

[43.10] Young Complainants 

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

[43.11] Evidence Of Spouses 

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

[43.12] Jurisdiction 

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

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

[43.13] 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 Males', section 163 of the Penal Code (Ch. 26) is examined commencing on page 655.