20 September 2017

Zimbabwe: Can a Child Legally Consent to Sex?

opinion

When looking at the age at which one is legally regarded as having the ability to consent to sex, it usually sparks much debate and argument. It is, however, important that everyone has a general understanding of what the law provides in this regard.

Whether or not a child can consent to sex is influenced by what is legally termed the "age of consent". What this means is that the law establishes the minimum age at which a child can be considered to have assented to having sexual intercourse with another.

In Zimbabwe, a girl is regarded to have the ability to consent once she has reached the age of 16. The law goes further to make a bald statement by asserting that a girl under the age of 12, regardless of whether or not she verbally agreed, cannot consent to sex. Any sexual intercourse that happens between a girl under the age of 12 and a man is automatically rape. This in turn means that girls between the age of 12 and 15 cannot be regarded to have the capacity to consent to sex although their being sexually active with a man does not always automatically translate to rape.

There are two focal areas of law that deal with this issue of consent; the first one being rape and the second being sexual intercourse with a young person or what is popularly referred to as "statutory rape". One is said to have been raped if they can prove among other things that a man forcefully had penetrative sex with them without their permission. Rape can be summarised as non-consensual sexual intercourse by a male with a female. There is no age limit on who can legally claim to have been raped.

The essential element herein is whether or not the female expressly agreed. It is worthy to note that for every other age group above the age of 11, one will have to prove that they were actually raped. However, for a girl under the age of 12, it shall and will not be an acceptable defence to state that the child verbally agreed to have sexual intercourse. It will also be unacceptable to state that the sexual intercourse was a result of having been in a romantic relationship with the said child (under the age of 12).

This same child, being of that age and having no capacity to consent to sex, cannot be regarded as a "prostitute" should they engage in sex work. This child remains a child and is considered a rape victim.

Because a child under 12 cannot consent to sex, any acts of penetrative sex dabbled in with this child automatically culminate to rape. Only their age with regards to the age of the perpetrator is the determinant factor in probing whether or not there was rape.

It means that if both the male and the female are 12 years of age and they agreed to have sex, that is not rape. If however, the 12-year-old girl agrees by word of mouth to have sexual intercourse with an adult male - who is over the age of 18, it is rape. This also may include males under the age of 14 who are said to have criminal capacity and therefore may be charged with rape.

This brings me to the second area of law, which is sexual intercourse with a young person. The law states that a person commits this crime if he or she has sexual intercourse with a girl or boy who is 12 or over 12 but is under 16 or performs an indecent sexual act upon such person.

The presumption here is that the sexual act was done while both the older person and the young person under the age of 16 were in agreement. With this crime, the law maker rationalised that it is not accurate to say that a young person under the age of 16 can fully appreciate the consequences of being sexually active.

Their consent is only legally valid in so far as proving that the sexual act was not rape. However they still do not have the capacity to fully consent to sex and the consequences therein.

It is interesting to note that the Constitution states that any person above the age of 18 can found a family. This automatically means that a person above the age of 18 can fully consent to sex and where consent is vitiated will culminate to rape. If indeed the law states that 18 is the age when one can start a family, there is a gap between the criminal code and the Constitution.

On one hand we have a law stating that a 16-year-old can consent to sex and consequently can start a family while on the other the supreme law is saying only when one reaches the age of 18 can they start a family. The alignment of this provision is long overdue because the law cannot afford to be ambiguous when it affects the rights and welfare of a child. The Constitutional Court in the case of Mudzuru and Tsopodzi versus the Minister of Justice and others stated that only a person aged 18 and above can found a family.

In the Constitutional Court the assumption is that only persons over the age of 18 can found a family, meaning that they can marry. Even society frowns upon children being sexually active before reaching the legal age of majority. However criminal law allows for children above the age of 16 to be sexually active. That remains a dangerous gap in the law.

What can be derived from this discussion is that; A child under the age of 12 cannot consent to sex and any acts of a sexual nature will be automatically regarded as rape or aggravated indecent assault,

A child between 12 and 15 can be said to have agreed to sex. However it is still a crime to have sexual intercourse with them, A person over the age of 16 is allowed to consent to sex and where they can prove that there was no consent; it will be regarded as rape.

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