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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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