ABOUT WHETHER THE USE OF A FINGER CONSTITUTES SEXUAL INTERCOURSE
ABOUT WHETHER THE USE OF A FINGER CONSTITUTES SEXUAL INTERCOURSE
In April 2022, Gilbert Sichula, who was preparing for his wedding, attended his Chilanga Mulilo ceremony. During the ceremony, he ate and consumed alcohol with his friends.
After the ceremony, Sichula and his friends stopped at Lewanika Mall, where they consumed more alcohol. He later proceeded to his cousin’s house, where he was expected to spend the night.
Upon arrival at his cousin’s house, Sichula was allocated a room in which he spent the night. The room was shared with his ten-year-old nephew. The following morning, the nephew alleged that Sichula had inserted his fingers between his buttocks and that he felt a hard object enter him.
The matter was subsequently reported to the child’s mother. The mother, together with the child’s father, took the child to the University Teaching Hospital for a medical examination. The examination revealed that the child had sustained an injury to the anus.
The matter was immediately reported to the police, and Sichula was arrested and charged with one count of unnatural offences, it being alleged that he had carnal knowledge of his ten-year-old nephew against the order of nature.
In his defence, Sichula stated that he had been intoxicated and could only remember waking up during the night to look for his bag.
However, the Subordinate Court rejected Sichula’s defence and found, among other things, that he and the boy had slept in the same room on the material night and that the child’s evidence was supported by the medical evidence, which showed that he had sustained a cut to the anus.
Sichula was consequently convicted and sentenced to 25 years’ imprisonment with hard labour.
Dissatisfied with this decision, Sichula appealed to the Court of Appeal, arguing that the essential ingredients of the offence had not been proved. He contended that carnal knowledge requires proof of penile penetration and that penetration by a finger does not satisfy that legal requirement.
The Court of Appeal allowed the appeal and acquitted Sichula. The Court held, among other things, that for purposes of the offence charged, carnal knowledge requires proof of penile penetration, and that penetration by a finger does not meet that legal standard.
The Court further held that the Subordinate Court erred in treating digital penetration, together with medical evidence of injury, as sufficient proof of carnal knowledge. The evidence, including the trial court’s own findings, established only digital penetration.
The Court concluded that digital penetration does not constitute carnal knowledge for purposes of section 155(a) of the Penal Code. Accordingly, the conviction was quashed and the sentence set aside.
The implication of this judgment is that, for offences requiring proof of carnal knowledge, including rape, the relevant penetration must be penile penetration. Digital penetration, without proof of penile penetration, is insufficient to establish carnal knowledge.
In other words, for the ingredient of sexual intercourse to be proved, the prosecution must establish that the penetration was effected by the penis and not by any other object or body part.
Case Citation: Gilbert Sichula v The People (Appeal No.09/2025) [2026] ZMCA 124 (23 July 2026
By George Nkhuwa