DISSERTATION PROPOSAL

Michelle Mumba

LLB1712556
TOPIC

AN ANALYSIS OF THE ADEQUACY OF THE LAW ON INCEST IN ZAMBIA: A

COMPARATIVE STUDY WITH SOUTH AFRICA

INTRODUCTION

The term ‘Incest’ is defined as sexual intercourse between persons so closely related
that they are forbidden by law to marry1. Chapter 87 of the laws of Zambia, also
known as the Penal Code, provides for the term ‘incest’ and what it encompasses. It
does not define what incest is per say, but rather provides for what constitutes

incest. This paper will thus analyse the restriction of the classification of incest as

per Chapter 87 of the laws of Zambia, as well as make a comparison with the law
of incest in South Africa.

BACKGROUND OF STUDY

The Bible is one of the earliest references that have cited the law of incest. The New
Testament prohibits and condemns any sort of relations between a male and his
father's wife2. Before ratifying the old covenant in Genesis, God evidently allowed
marital relationships among family, and in fact blessed His people who were involved
in such a relationship. For instance, Abraham married Sarah, his half-sister 3, while
Abraham's son (Isaac) married Rebekah (his second cousin) 4, and Jacob
(Abraham's grandson) married his first cousins (Rachel and Leah) 5. Protestant
Christians (Christians that begun a movement in northern Europe in the early 16th
century as a reaction to medieval Roman Catholic doctrines and practices 6) view
Leviticus 18:6-20 as part of the “moral law” and still being applicable which strongly
prohibits and condemns any type of sexual/marriage relations between a male and
his mother, sister, step-sister, step mother. Leviticus further condemns relations
1
https://www.merriam-webster.com/dictionary/incest
2
1 Corinthians 5:1-5
3
Genesis 20:12; Genesis 17:15-16; 22:17
4
Genesis 22:20-23; 24:4,15
5
Genesis 24:29; 29:15-30
6
https://www.britannica.com/topic/Protestantism
between a man and the daughter of his wife or any other woman he may be having
relations with, including the sister of the woman he had/has sexual relations with
while the first sister of that woman is still alive7.

We can see that these moral laws from the Bible, are a reflection of the statutory
laws that govern us today.

From a scientific point of view, there have been scientific beliefs and reasons behind
the advancement of the origin of the incest “taboo” which form some of the rationale
behind the laws governing incest. It has been construed that a child born as a result
of an incestuous relation is born with a physical or mental defect 8, this is because
incestuous relations increase the passing of congenital family defects to offspring 9.

Other reasons for incest being prohibited include the protection of family units and
the protection of society. Regarding the protection of family units, the US Supreme
Court recognized that most values, morals and culture are passed down to our
offspring10. Most of our daily practices, principals and morals are defined by the
principles laid down by our ancestors. When we talk about protecting society, it
means that sanctions had to be put in place to avoid incest from becoming an
accepted norm in society.

Incest is a sexual offense under the penal code, even if the act was consensual by
both parties. The Penal Code does not explicitly define the word ‘incest’, however, it
has categorized incest into two forms, the first being incest by males as per section
159 of the Penal Code and incest by females as per section 159(2) of the penal
code.

Section 159 (1) of the Penal Code states that; “any male person who has carnal
knowledge of any female person who is to that person’s knowledge his grand-
mother, mother, sister, daughter, grand-daughter, aunt or niece commits a felony
and is liable, upon conviction, to imprisonment for a term of not less than twenty
years and may be liable to imprisonment for life.” 11 Section 159 (2) further provides
that, “ any female person who has carnal knowledge of a male person who is to that

7
Holy Bible, Leviticus 18
8
D. WALTERS, PHYSICAL AND SEXUAL ABUSE OF CHILDREN: CAUSES AND TREATMENT 112 (1975)
9
https://reproductive-health-journal.biomedcentral.com/articles/10.1186/1742-4755-6-17
10
Moore v City of E. Cleveland, 431 US. 494, 503-04 (1977)
11
Chapter 87 of the Laws of Zambia, section 159 (1)(2)
person’s knowledge her grand-father, father, brother, son, grandson, uncle or
nephew commits a felony and is liable, upon conviction, to imprisonment for a term
of not less than twenty years and may be liable to imprisonment for life. Section
159(3)12 further provides that it is immaterial that the carnal knowledge was had with
the consent of the other person.

Similar to the first category, this section basically entails that a female person aged
or above the age of 16 who agrees to have sexual relations with a person she knows
is her grandfather, father, brother or son, grandson, uncle or nephew is guilty of the
offense of incest.

STATEMENT OF THE PROBLEM

The Penal Code provides for the offense of incest and classifies what constitutes
incest. However the provisions do not include or classify any adoptive relationship
that that person may have with the other party. The Zambian Constitution also
recognizes customary law as a source of law in Zambia which frowns upon
relationships between cousins. Therefore, sexual relations between cousins can be
classified as incest just as it has in some jurisdictions. However, the provisions of the
Penal Code are silent on that matter, they do not include relationships between
cousins.

The Penal Code is also silent on the nature of the sexual acts that constitute incest
other than “carnal knowledge” (sexual intercourse). It does not provide for any other
form of sexual act.

Thus, the Penal Code is restricted and has therefore left room for ambiguity. It does
not provide sufficient clarity when the matter of incest is being addressed. Hence, it
may even be implied that it is only limited to the persons mentioned under sections
159 (1) and 161 of the Penal Code, i.e. females and males of blood
relations/consanguinity, and that certain sexual acts do not constitute incest.

OBJECTIVES OF THE STUDY

12
Chapter 87 of the Laws of Zambia, section 159
 ● To analyse how effective the law of incest is in Zambia.
● To analyse the effectiveness of the law of incest in South Africa
● To do a comparative study between the law governing incest in Zambia and
South Africa.

RESEARCH QUESTIONS

This study is based on the legal questions below:

1) Whether or not the law of incest is effective in Zambia

2) How effective the law governing incest is in South Africa
3) Which law in comparison is more effective when it comes to incest between
Zambia and South Africa

SIGNIFICANCE OF THE STUDY

The law on incest was enacted so as to generally prevent taboo and maintain moral
standards in society. However, if the law that prohibits incest has restrictions in
classifying persons who fall under it, it may lead to serious implications. Thus, this
research will enable us to understand why it is important to have a high degree of
prohibition, i.e. to have a broader classification of acts of carnal knowledge that
constitute incest; and further determine the extent of the implications, for instance,
leaving such loopholes could easily give the unclassified individuals the liberty or
justification to commit the offense of incest. This study will therefore effectively make
an impact on the current legislation and could possibly lead to the amendment of the
provisions in question and thus close the current gap in that law in Zambia.

SCOPE OF STUDY

This research will focus on the analysis of section 159 (1) and 161 of Chapter 87 of
the Laws of Zambia-the Penal Code. The research will make a critical analysis on
what the law classifies as incest and examine what happens when persons of
affinitive relations or blood relations not mentioned under the above sections have
carnal knowledge. This research will also make comparative analysis from section
12 (1) and (2) of the Criminal Law (Sexual Offences and Related Matters)
Amendment Act No 32, 2007 of South Africa.

DEFINITION OF TERMS AND LIST OF ACRONYMS

“Affinity,” relationship by marriage between the husband and the blood relations of
the wife, and between the wife and the blood relations of the husband; 13

“Ambiguous,” unclear, vague, confusion as to the meaning of something or that

which can be open to various interpretations;14

“Carnal Knowledge,” an act of especially illegal sexual intercourse; 15

“Consanguinity,” kinship; blood relationship; the connection or relation of persons

descended from the same stock or common ancestor;16

“Consent,” to give assent or approval;17

"Knowingly," used in connection with any term denoting uttering or using, implies
knowledge of the character of the thing uttered or used; 18

LITERATURE REVIEW

The definition of Incest and its implications to various aspects of the society has
been a topic that has been written by numerous authors in the past. As stated by
Maureen Wright in an article, “the complexity of the topic shown by its relationship
to sociology, psychology, anthropology, philosophy, law, religion and history 19 makes
incest a topic that ought to be clearly understood by practitioners of Law and
society.”
13
https://dictionary.thelaw.com/affinity/
14
https://dictionary.thelaw.com/ambiguous/
15
https://www.merriam-webster.com/legal/carnal%20knowledge
16
https://dictionary.thelaw.com/?s=consanguinity
17
https://www.merriam-webster.com/dictionary/consent
18
Chapter 87 of the Laws of Zambia, section 4.
19
https://journals.sagepub.com/doi/10.1177/000841748104800307.
In general, Laws and definitions/classifications of Incest vary considerably between
jurisdictions and are based on determinants such as the type of sexual activity, sex
of the involved parties, as well as nature of the relationship between them. For
example, Richard M. Sarles wrote in an article on sexual abuse of children,
discussing the persons to whom incest extends to – such as stepchildren and
adopted children. Furthermore, he related the act of incest to cover not only sexual
intercourse, but merely having “sexual intent” which could be in the form of fondling
to genital contact.20 According to an article by RB Weeks, Incest (defined by Weeks
as “sexual activity between consanguineous family members”) constitutes one of the
three (3) major forms of sexual abuse suffered by children 21. Baris Sancak MD in an
article, Mother–daughter incest alluded that incest does not only entail sexual
intercourse but any form of sexual behaviour among family members which include
touching. Baris further stated that incest is a traumatic stressor that causes long-term
psychological sequelae. The severity of psychological consequences of abuse
depends on many factors such as starting age, duration of abuse, presence of
coercion, violence, penetration, and closeness to the perpetrator. Having stated this
according to D. A. Batten, because of the psychological impact of incest, acts of
incest are barely reported because disclosure may lead to rejection as a result
victims are troubled by guilt, shame and fear of reprisals. Louw, in Van de Ede &
Louw alluded that parenting skills play an important role in a child’s development.
There are different parenting styles, and each could have an effect, positive or
negative, on the child’s decision to disclose incest with his father, and also on the
maternal response upon discovery

it is worth noting that there are different ranges of factors that may contribute to the
development and maintenance of incest. Faller and Reege stated that the
probability of sexual abuse can be increased by the range of complex factors that
include the individual, which in this case can be the victim, the perpetrator or the
mother; family factors and the environment. Other authors refer to these as factors
that increase the risks for incest to occur and according to Friedrich each factor
increases the risk by 10-20%. Furthermore, Nakashima and others explain incest

20
https://pedsinreview.aappublications.org/content/2/2/51
21
https://scholar.google.com/scholar_lookup?hl=en&volume=69&publication_year=1976&pages=848-
850&author=R.B.+Weeks&title=The+sexually+exploited+child
as being one of the strongest and most consistent taboos in both primitive and highly
developed cultures22. Bixler adds more context in which we see that incest has
layers of meaning such as the specific relationship between the individuals; age
differential; degree of sexual activity; consent; and duration of the sexual
relationship. However, having said this, there is a definitional confusion that occurs.
For instance, according to the Oxford Dictionary of Public Health, incest is defined
as “Sexual intimacy between close blood relations; i.e., siblings, parent and child,
uncle-niece, aunt-nephew”23. Yildirim report that father–daughter incest is the most
common version, followed by brother to sister versions. Incest also includes sexual
activities between adult members of a family who are not in a partnership (e.g.,
husband and wife) relationship. This can include adult children, close relatives and
people who have blood ties with each other 24. Green 2019 further alludes that all
incest involves intra-familial perpetrators including those who are tied by blood and
those tied by contractual relationships.

Most researchers offer a more limited view, such as the requirement for sexual
intercourse25. Therefore it becomes pertinent for any Jurisdiction to have clear laws
and definitions of Incest.

Thus, unlike, most researchers that have only focused on one aspect of incest, such
as Richard. M. Sarles whose study only covers children, this research will analyse
the entire current law pertaining to incest in Zambia and will aim to justify the
importance of having a higher degree of prohibition i.e. to have a broader
classification of the acts of carnal knowledge that constitute incest, and further
determine the extent of the implications of incest. My research will be looking at all
aspects of incest such as definitional differences. As seen in the articles cited above,
most researcher’s work often extends only to sexual intercourse, while other
researchers regard sexual intentions such as inappropriate touching to amount to the
act of incest, other authors such as Bixler, talk about duration of the sexual
relationship in considering what constitutes incest and this brings about one of the

22
https://journals.healio.com/doi/abs/10.3928/0090-4481-19790501-06

23
Oxford Dictionary of Public Health, “2007, oxford press 2nd ed”
24
Yildirim, Ali, Erdal Ozer, Hasan Bozkurt, Sait Ozsoy, Ozgur Enginyurt, Durmus Evcuman, Riza Yilmaz, and
Yunus E. Kuyucu: Evaluation of social and demographic characteristics of incest cases in a university hospital in
Turkey 2014
25
C. Peter and S. Radha, A need to Act: Incest as a crime given low priority- a review with India. 2021 p3
major definitional differences and confusion as to what exactly constitutes incest and
who the perpetrators that fall under the classification of incest are.

Therefore, my research will aim at closing this definitional gap so as to cover a much
broader spectrum of the law of incest and not leave room for ambiguity when
matters of incest are being addressed. At the close of this study it is expected that
this research will make an effective impact on the current legislation and close the
current gap in that law in Zambia.

METHODOLOGY:

RESEARCH APPROACH

This research will use the qualitative approach through desk study as its aim is
mainly to analyse the classification of incest under the penal code. This particular
approach will be ideal as the study is focusing on critical analysis of the classification
of incest under the Penal Code of Zambia, while making a comparison to the
classification of incest in the Criminal Law (Sexual Offences and Related Matters)
Amendment Act of South Africa.

DATA COLLECTION TECHNIQUE(S):

The information that will be used in this research will be obtained strictly from experts
in this area of study or related study, books, websites, journals, articles and statutes
written on this particular study

METHODS OF GATHERING SECONDARY DATA

Secondary data collection will be obtained from books, articles, statutes, journals
and e-sources, cases, etc.

DATA ANALYSIS

Information that will be gathered for the purposes of this research will be critically
analyzed through consultation of literature such as journal articles, cases, books,
dissertations, Acts of Parliament, international instruments, credible internet sources,
etc.

ETHICAL CONSIDERATIONS

Authorization to conduct this research will be attained from the University of Lusaka’s
Ethical committee who will give ethical clearance of the study. Secondary information
will be obtained from published documents of different credible authors.

WORK PLAN/TIMELINE

31st March 2021 – 23rd April 2021: writing of the research proposal

23rd April 2021: submission of research proposal for making

10th May – 28th May 2021: Publication of approved research proposals

31st May – 20th August 2021: Submission and completion of chapter 1

20th September 2021: Submission of chapter 2 to supervisor

BIBLIOGRAPHY

Books:

● Holy Bible
● D. WALTERS, PHYSICAL AND SEXUAL ABUSE OF CHILDREN: CAUSES
AND TREATMENT 112 (1975)

Statutes:

● Chapter 87 of the Laws of Zambia

Cases:

● Moore v City of E. Cleveland, 431 US. 494, 503-04 (1977)

Journal articles:

● Richard M. Sarles, Paediatrics In Review

● Maureen Wright, Incest: A Historical and Behavioural Perspective in Family
Life
● I. I NAKASHIMA AND OTHERS, INCESTUOUS FAMILIES
● R. B WEEKS THE SEXUALLY EXPLOITED CHÍLD

Websites:

● https://dictionary.thelaw.com
● https://www.merriam-webster.com
● https://reproductive-health-journal.biomedcentral.com/articles/10.1186/1742-
4755-6-17
● https://pedsinreview.aappublications.org/content/2/2/51
● https://scholar.google.com/scholar_lookup?
hl=en&volume=69&publication_year=1976&pages=848-850&author=R.B.
+Weeks&title=The+sexually+exploited+child
● https://journals.healio.com/doi/abs/10.3928/0090-4481-19790501-06
● https://journals.sagepub.com/doi/10.1177/000841748104800307 .