Kuwait Court of Cassation principle number 204

Summary: - Criminal intent in the offence of sexual intercourse. Is established whenever the perpetrator commits the act constituting the offence knowingly and wilfully. Express and separate discussion of it in the judgment. Not necessary. Rule: The material element of the offence of sexual intercourse with a female is established by vaginal intercourse through penetration by the male organ. The element of coercion in this offence exists whenever the act constituting it occurs without the victim’s consent, whether through the accused’s use—in pursuing his purpose—of means of force and threats or other means affecting the victim so as to deprive her of her will and render her incapable of resistance. Criminal intent in this offence is likewise established whenever the perpetrator commits the act constituting it knowingly and wilfully, and the judgment need not discuss it expressly and separately, so long as the facts it sets out indicate its existence. Whereas what the judgment set out in its account of the facts of the case and its recital of the evidence on which it based its ruling—in the context previously described—was sufficient for its conclusion that the appellants had sexual intercourse with the victim against her will, and establishes against them all the elements of the offence of sexual intercourse with a female by coercion as defined by law, this is not undermined by the appellants’ invocation of the victim’s failure to call for help or resist—even assuming that occurred. That is a matter attributable to the nature of the person herself and the circumstances in which she was placed, and is not subject to fixed standards governing people’s conduct under identical circumstances. Since the judgment concluded that the offence of sexual intercourse with a female by coercion was established against the appellants, it correctly applied the provisions of the law, and the ground of challenge against it in this regard is unfounded.