If anything adds to the heat in Parliament to legislate for a very high minimum mandatory sentence for rapists, and 20 years has been suggested, the decision by a regional magistrate sitting in Marondera to pass an effective seven-year sentence on a 21-year-old man for pre-meditated rape of an 11-year-old will add the required fuel.
The facts are fairly simple.
The girl was walking from school.
The man following his premeditated plan was lurking near a bushy and hilly area, had dressed himself as a woman, had masked his face and was carrying a knife and a piece of cloth to use as a gag.
As the girl came up he approached her, and since he was dressed as a woman she did not run, then he grabbed her, produced his knife, dragged her off the road, gagged her and raped her.
He fled when her mother came looking for her. As he fled his face was unveiled.
The girl pulled off the gag and called for help, and her mother found her weeping.
They fortunately went straight to the police, so the required medical evidence was obtained promptly.
The mother had brought along one of her friends on the search, so there was a witness.
This set of decisions meant the case was open and shut and the conviction followed in just over a week.
Then came the sentence, 10 years with three years suspended.
While a judicial officer has to take into account all aggravating and mitigating factors when passing sentence, many will feel the starting point for the sentence was low, and the present set of legal precedents are considered low by many.
There will be reasonable agreement by critics of the sentence that the serious aggravating factors of the age of the little girl, and the high level of planning and premeditation of the assault would severely outweigh the age of the young man, but he was more than three years into adulthood, and the probable fact that he was a first offender.
As with all longer sentences passed by a magistrate the case will be reviewed by a High Court judge, and that judge could well find that the sentence does not meet the standard of real and substantial justice.
But it is likely that the regional magistrate was simply following precedent when setting the sentence, and here is the basis for the Parliamentary pressure for much higher sentences, with minimums of 20 years being proposed.
The judiciary strongly dislikes mandatory sentences, even when there is provision for the sentencing judicial officer to have discretion when exceptional circumstances can be found.
Others are also troubled, since mandatory minimums also mean magistrates and judges cannot take all factors involved in each case and with each accused into account.
Every judge and magistrate who presides over a criminal trial says the sentencing is easily the hardest part.
The question of guilt or innocence involves applying well laid down rules to the evidence to see if guilt is proved beyond reasonable doubt, and in fact some countries allow a jury of lay people to do this, once a trained and legally educated judge has set out the rules and points that apply in the particular case.
Every guilty person, even when guilty, is still an individual and circumstances in every case are different, both in the way the crime was committed and with the convicted person.
So generally judges and magistrates have discretion on sentencing.
But one of the factors in sentencing is also public opinion about the crime, and the nature of the crime, and judicial officers need to think about that.
And now a large and growing block of public opinion thinks judges and magistrates are out of kilter with the growing weight of public opinion concerning the heinousness of rape assaults, at least in many cases and especially in the cases where the assaulted person is a little girl.
We have been here before. In colonial days, and the early years of independence, anything from one to two years was considered adequate for what was termed an "ordinary" rape, an adult man raping an adult woman. When the assaulted person was a child, or the rapist was a person in authority over the woman, a year or two might be added.
There was a growing outcry in the early years of independence, fanned into flame when a Harare schoolteacher received a trivial four years or so for raping three grade three girls in his class, at round about the same time, and for very good reasons supported by the Supreme Court, a High court judge had established a new precedent of seven years for car theft, to be varied according to mitigating or aggravating evidence at sentence.
Then Chief Justice Telford Georges stepped into the fray.
Originally a West Indian judge, he had been Deputy Chief Justice of Tanzania before coming to Zimbabwe, and in very careful and unemotional terms he told a sentencing seminar at the University of Zimbabwe that he had been horrified by the sentences for rape he found in Africa. In the West Indies, a fairly free and easy open society, rape was treated far more severely with 10 years at the absolute minimum.
He analysed the huge gap between his earlier and later experience as a difference in what the crime actually involved.
He thought that in Africa there was a tendency then to see it as wooing that had gone a bit too extreme, rather than as an exceptionally severe assault.
Psychologists and other academics backed the judge, saying rape had little to do with sexual gratification, which almost any rapist could find elsewhere, and far more to do with a desire to hurt and humiliate the woman or girl, and show how the rapist could totally dominate her and exhibit the power he had over her.
Basically they too saw it as a crime of exceptionally severe assault, right up there with attempted murder.
In the debate the Government increased the sentencing jurisdiction of regional magistrates, then a fairly new level of top-end magistrates made possible by the 1970s programme to ensure all magistrates had law degrees, instead of just passing civil service exams, so there were now experienced better educated magistrates.
Sign up for free AllAfrica Newsletters
Get the latest in African news delivered straight to your inbox
Regional magistrates were allowed to pass 10-year sentences, first for just rape then for other crimes.
It now seems time for another and more detailed study of rape sentencing, getting evidence from academics, criminologists, psychiatrists and psychologists, and women and victims, even if that last group wishes anonymity, plus input from judges and regional magistrates, now even more valuable with so many judicial officers, from the present Deputy Chief Justice downwards, being women, which was not the case in the early 1980s.
Men should also remember that when we codified our criminal law, we introduced the new crime of aggravated sexual assault to cover homosexual rape, instead of just bundling all consensual and non-consensual gay sex together, and the judiciary has tended to apply rape sentencing standards to that new crime, very sensibly.
So we still need to look at those rape sentencing standards.
This sentencing study could be done through a Parliamentary committee, but possibly better if organised through the Judicial Services Commission, or even both. But it is obvious that most people want a review, now, and whether we organise this as a review of sentencing standards, or whether we see modern public opinion expressed through legislation in Parliament, it will come.
We just need to find the best way.
