Kuwait Court of Cassation principle number 141

Summary: - Where the incident itself indicates, in a manner leaving no room for doubt, the existence of the two offences of adultery and consensual intercourse charged against the male and female accused, in a witnessed state while caught committing them. What does not affect the existence of these two offences because it is inconsistent with the truth of which the court was satisfied. - The two offences charged against the accused arising from a single act. Its effect. Imposition of the penalty for the more serious offence. Rule: This Court agrees with the investigating authority and the court of first instance, and shares their assessment that the account of the incident as testified to by the officer involved in the incident—previously mentioned—was that, after he had obtained authorization from the Public Prosecution to arrest the female accused and search her residence, after his inquiries and surveillance of the residence had confirmed that the male accused had been with her since 1 o’clock after midnight, and in execution of that authorization, he proceeded with a force of plainclothes policemen to the female accused’s residence. At 3 o’clock in the morning—shortly before dawn—they were able to enter the apartment, as its door was not closed. When they heard faint sounds coming from the bedroom, the officer entered it, followed by his companions, and saw the female accused .... lying on her bed with the lower half of her body unclothed, and the male accused ..... lying beside her, likewise completely unclothed, with his arm wrapped around her body which was touching his. They had thrown their underpants and a used sanitary pad beside them on the bed and had placed a sheet over the lower halves of their bodies. They did not become aware of the entry of the officer and those with him until they were around the bed. The officer also found in the room bottles of liquor, the narcotic hashish, and cigarettes filled with that narcotic. He apprehended the accused in this state, and, upon his confronting the female accused, she admitted to him that the male accused ............. was her boyfriend and that he had had intercourse with her several times before the incident of apprehension. This account itself indicates, in a manner leaving no room for doubt, that the said male accused had sexual contact with the female accused ....................., and that he had intercourse with her by vaginal penetration with their mutual consent, thereby establishing the two offences of adultery and consensual intercourse prescribed in Articles 194 and 195 of the Penal Code in a witnessed state, and they were apprehended while caught committing them. The Court points out that its conviction is not altered by what appears in the forensic medical report concerning the absence of traces on the female accused’s body and the absence of seminal contamination in the vaginal swabs taken from her, as well as in the remaining exhibits consisting of clothing, the sanitary pad and paper tissues. That has no effect on the commission of the offence and the establishment of its legal elements, for whose completion mere vaginal penetration of the woman suffices. It is immaterial whether penetration is complete or partial, and it is not required that the act continue for any period, long or short, that ejaculation occur, or that intercourse leave a trace on the woman’s body. The Court therefore disregards what appears in the forensic medical report in this respect and the accused’s defence based upon it, because it is inconsistent with the truth of which the Court was satisfied and which became firmly established in its conviction. That being so, and since the two offences charged against the accused arose from a single act, it is necessary, pursuant to Article 84 of the Penal Code, to impose the penalty for the offence carrying the more serious penalty—namely the offence of adultery—the subject of the first charge alone.