Wednesday, September 22, 2021
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Legal Perspectives with Fidelicy Nyamukondiwa



What
is Statutory Rape?
‘Statutory Rape’ is a
misnomer. The correct legal term is ‘having
sexual intercourse with a young person
’. There is a bold line between
‘having sexual intercourse with a young person’ and rape. The latter is
committed when a man has non-consensual sexual/anal intercourse with a woman. The
former is criminalised by section 70 (1) (a) of the Criminal Law Code. This
article is a brief analysis of section 70(1) (a) of the Code.
Section 70(1) (a) of
the Code criminalises consensual sexual intercourse with young persons. A young
person is defined in the Code as a boy or a girl under 16 years. Therefore, 16 year-olds
are consequently not young persons. As a result of the foregoing, it is not an
offence to have consensual sexual intercourse with a 16 year old child. The rationale
behind section 70 of the Code is to protect ‘young persons’ from sexual exploitation by predatory adults. The
constitutionality of the Code’s definition of ‘young person’ is questionable in
view of section 81 of the constitution which provides that boys and girls below
18 years have the right to be protected from sexual exploitation.
Whilst our current
criminal law does not criminalise consensual sexual intercourse with 16 and 17
year olds, that does not mean such children can get married. As explained in my
previous article titled ‘Categories of persons who cannot marry in Zim’, the
minimum age of marriage in the country is 18 years. There is a blatant lacuna
in our law. In Latin such a gap is termed a ‘casus omissus’. The lawmaker must
spring to action and align the Criminal law code with the Constitution.
Legally, a child who is
12-years-old or below can never be said to have consented to sexual intercourse.
A man who engages in sexual intercourse with such a child commits rape. If the
accused is a female, the offence is called ‘aggravated
indecent assault’
. If an adult has consensual sexual intercourse with a
young person above 12 years of age but of or below the age of 14, the person
must be charged with rape unless there is evidence to show that the young person
was capable of consenting.
It is not an offence
for children under 16 years to have consensual sexual intercourse amongst
themselves. I cannot do more than restate the famous dictum of Justice Ndou in S v 
Juvenile(RPS) HC 18/03
; “Whilst it might be a bitter pill to swallow
for parents, youngsters aged under sixteen can freely indulge in sexual
activities outside criminal sanctions…This does not seem ideal in this era of
HIV/AIDS. There is nothing criminal about accused’s conduct although morally
and religiously reprehensible.”
Having sexual
intercourse with a young person is a relatively serious offence.  In Sv
Banda & Chakamoga HH 47/16
, Justice Charewa urged magistrates to impose
effective sentences of not less than 3 years
for those accused who are
twice the victims’ ages, are married with children of their own,
impregnate the young persons
or infect them with STDs.
A magistrate can consider community
service or payment of a fine depending on the circumstances. Each case is
decided on its own merits.
Fiat Justitia Ruat
Caelum!
Nyamukondiwa
Fidelicy writes in his personal capacity. Contactable on
nhanyams@yahoo.com/0785827154

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