Kayira v. State

In 2013, the appellant was found having sexual intercourse with the victim, who was 15 years old. The next day the victim told the court that she and the appellant had been in love since June 2011 and that they had a sexual relationship. She testified that they were married and she was his second wife, but Malawi required parental permission for children aged 15-17 to marry (as of 2015, section 14 of the Marriage, Divorce and Family Relations Act requires that parties be 18 years old to marry). Malawi charged the defendant with defilement contrary to Penal Code § 138(1) and indecent assault contrary to § 137(1). Section 138(1) provides, “Any person who unlawfully and carnally knows any girl under the age of sixteen years shall be guilty of a felony and shall be liable to imprisonment to life” (¶ 7.1). In the lower court, the appellant pleaded not guilty arguing that the victim consented to the sexual acts and that she showed him an identification card that she had doctored to state that she was 17 years old at the time. Acknowledging that the victim had changed her year of birth on her identification, the lower court found the appellant guilty on both counts. The appellant filed two grounds of appeal asking: (i) “whether the conviction of the appellant was proper with regard . . . to the circumstances of the case;” and; (ii) “whether the sentences were manifestly excessive considering the” fact the victim had mislead the appellant with respect to her age (¶ 3.1). The High Court upheld the conviction citing the strict liability nature of the crime. The Court noted that the victim was clearly underage at the time of the sexual intercourse and rejected the defendant’s consent defense noting that “girls under the age of . . . [16] are incapable of giving consent due to immaturity (¶ 7.4).” Notwithstanding, the Court reduced the appellant’s sentence to four years for defilement and one year for indecent assault to run concurrently, noting that the appellant did not know that the victim was under age.