Introductory Note
Earlier this week, the editor of The Chronicle, a national daily, called seeking an opinion on the law of consent in Zimbabwe. There has been a spate of criminal cases concerning children who were sexually abused by older men and yet the sentences imposed by the courts were ridiculously low. It looked like the law concerning protection of children from sexual exploitation was weak and the attitude of the justice system to sexual crimes against children was shocking.
While criminal law is not my area of speciality, I agreed to work with the paper to raise this matter of immense public interest. An interesting feature of all this is that the matter had first come under discussion on a Twitter thread in which I had participated at the weekend. It was interesting to see a debate generated on social media finding its way into the traditional media and from there, generating a great deal of public attention and debate. The Chronicle has followed up with another story http://www.chronicle.co.zw/courts-send-child-molesters-to-schools/ I understand radio talk-shows are also discussing this issue, demonstrating yet again the influence of social media. The matter is sure to command attention for some time mainly due to the weaknesses in the law and justice delivery system that we helped to expose.
It is also a perfect demonstration of how discussions on social media are not just idle debate but that, if properly channeled, they can be a force for positive social change. It might seem strange to some to see my work earning space in state media, since I am often critical of it, but an important lesson here is the potential that rests on putting heads together in pursuing matters of public interest. Zimbabwe faces a myriad of challenges and not all of them are political. We cannot reduce everything to political contestation and if we can use national media spaces to pursue an agenda for social change, it can only be a good thing for Zimbabwe. This is a perfect illustration of Zimbabweans of different political persuasion getting together and driving an agenda for social transformation. This is as it should be.
I am pleased at the enormous public interest and debate that this article has generated. When you write on matters of social interest, you always hope that the work has some impact and to the extent that this article has generated so much interest, we celebrate its impact. I should commend editor of The Chronicle, who took the initiative and had this article on their front page accompanying their lead story in their issue of 9th June 2015 http://www.chronicle.co.zw/the-law-of-consent/. Their sister paper, The Herald, followed suit and published the article on 10th June 2015 http://www.herald.co.zw/unpacking-the-law-of-consent/
Needless to say, we also take this opportunity to celebrate the impact of our work on this website.
Today, we publish the article in full for the benefit of our readers. Meanwhile, the debate on this issue among Zimbabweans is set to continue. It is an important issue which requires collective attention.
Law of Consent
In understanding the law of consent, we have to look at the law with a critical eye and expose its weaknesses. A superficial look at the law might indicate that the age of consent in Zimbabwe is 16, because that is the definition of a young person under the Criminal Law Codification Act, but a critical analysis demonstrates that in fact, for purposes of rape, the age of consent is effectively 12 years old.
Girls under 12: Rape
The law, as I understand it, is that the age of consent for girls for purposes of rape is 12 years old. This means a child who is under 12 years old is, at law, totally incapable of consenting to sex. In essence, there is an irrefutable presumption that a girl under 12 is incapable of consenting to sex. A person who has sex with a girl under 12 will be charged with rape and cannot use the defence that the child consented to sex because the law classifies such a girl as someone who is completely incapable of consenting to sex.
The sentence for rape is stiff, it being imprisonment for life or a shorter period. There is no option of a fine.
Girls between 12 and 14: Rape but possibly a lower offence
If a person has sex with a girl who is above 12 but under 14, the person will be charged with rape unless he can demonstrate that the girl was capable of giving consent and did give consent to sex on that occasion. This means an accused person can escape the charge of rape by showing that the girl was capable of giving consent and did actually give consent.
However, if the person is not charged with rape, he would still be guilty under s. 70(1) of performing sexual intercourse or an indecent act with a young person. S. 70(2) makes it clear that consent is not a valid defence to the charge of sexual intercourse or indecent act. The law does not say the girl below 16 (but above 12) cannot consent to sex – it simply says, such consent is not a defence to the charge of sexual intercourse or indecent act.
The sentence this offence attracts is lower than for rape, it being a fine not exceeding level twelve or imprisonment for a period not exceeding ten years or both.
Points to note:
What all this amounts to is that while it is often said the age of consent in Zimbabwe is 16 years, it is on analysis, effectively 12 years for girls in respect of the higher offence of rape. The law says a young person is a person who is under 16 but it’s only girls under 12 who are protected by the irrefutable presumption that they are incapable of consenting to sex.
This is too low and exposes young girls to abuse. The average age of consent in most other countries is 16.
A man who has sex with a 12 year old girl may be able to escape the charge of rape if he can show that the girl was capable of giving consent and that she gave consent. He will only be charged with a lower offence of performing sexual intercourse or an indecent act with a young person. This attracts a lower sentence compared to rape which attracts a term of up to life imprisonment. This would not happen if all girls under 16 enjoyed the irrefutable presumption that they are incapable of consenting to sex.
The law does not provide sufficient protection for young girls, but worse, the attitude of the judges and magistrates to sexual offences leaves a lot to be desired.
A reading of some of the judgments and decisions of magistrates demonstrates very conservative views which are influenced by patriarchy which remains dominant in our society. In some cases, children who have been abused are encouraged to marry their abusers, while in other cases, the matter is settled between the girl’s male relatives and her abuser. The sentences are generally lenient and some of the reasoning shows that girls have an uphill struggle to convince police, prosecution and judicial authorities in cases of sexual offences (see http://www.zimlii.org/zw/judgment/bulawayo-high-court/2013/70 ) It is not unusual for offenders to get away with fines or community service.
It’s not surprising that most cases of rape go unreported. Or if they are, they are often settled between families. This is a moral hazard as it only serves to encourage offenders.
At present, the law perpetuates the ruse that the age of consent is 16 when in reality its effectively 12, for reasons explained above. If you ask most lawyers, they will tell you the age of consent is 16 years because that is what they are taught and that is what the Criminal Code suggests on the face of it. But a critical examination of the law reveals that it acknowledges that a child of 12 years can consent to sex and if that is proven, then the perpetrator will escape the charge of rape and will only be convicted of the lower offence of sexual intercourse with a minor. The law says consent is not a defence to this lower charge, making it appear like it’s strict but actually it isn’t and this is where the deception lies.
It is deceptive because it makes look like the law is strict whereas it isn’t for the simple reason that, as we have seen, the penalty for this offence is usually very low. It is so low to the point that the age of consent rule is almost a cover for injustice. The simple point is that the law should never leave room for courts to accept that a child of 12 or 13 can be said to have consented to sex. The irrefutable presumption that a child cannot consent to sex should apply to all persons whom the law regards as children. There should be no exception because it is this exception that becomes a big loophole that is exploited by perpetrators. As it is, the offence of sexual intercourse with a young person has become an easy escape route from rape for those who prey on children. This is why I argue that the notion that the age of consent is 16 is actually a deception.
There is need to raise the age of consent for purposes of rape to at least 16 or higher. No child under 16 or higher should be regarded under any circumstances as having the ability to cosent to sex. Here is a selection of the age of consent in other countries: South Africa (16) Namibia (16) Botswana (16) UK (16), Canada (16) Ireland (17) Romania (18) Sweden (15) Germany (14) Italy (14). While Zimbabwe’s age of consent is often reflected as 16, this is not an accurate reflection since it is only where a girl is under 12 that there is an irrefutable presumption that they cannot consent to sex. In all cases above that, consent, if proven vitiates the charge of rape and only exposes the offender to a lower and less tough charge.
But more important is a mental revolution in regard to society’s attitudes to women and girls, to the seriousness of rape and sexual offences against women and girls. This mental revolution must sweep through the corridors of the justice system, right from the police outposts in Madlambudzi through to the magistrates courts at Rotten Row and the superior courts along Samora Machel Avenue and down to Nelson Mandela Avenue where the Houses of Parliament sit. The law is a bit of jungle but it is the attitudes that must be overcome.
The irony is that Zimbabwean laws protect cattle against theft better than they protect young girls against sexual abuse. Laws against theft of cattle provide for a mandatory prison sentence, yet a man who sexually abuses a child can get away with a fine or community service. It’s a national scandal!
waMagaisa
In the public interest, we are not placing the usual restrictions on the re-publication of this article.
