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The Criminal Law Codification and Reform Act states offences that fall under the category of sexual crimes. These unlawful sexual offences occur when there is no consent, that is when one of the parties has not agreed to the sexual activity, or when they lack the capacity in terms of the law to consent due to the fact that they are young persons or are mentally incompetent to give any consent. For a person to be convicted of a criminal offence there has to be proof beyond any reasonable doubt. One must prove the physical aspects of the crime. This is known as the actus reus. They must also prove the mental aspects of the offence and this is known as the mens rea. Thus one must prove that the alleged offender actually committed the offence and that they had the intention to do it. Evidence must therefore prove and satisfy both these elements.
This year’s theme for the 16 Days of Activism against gender based violence is ‘Orange the world: Generation Equality Stands Against rape.’ Although during this period, the emphasis is on rape, this article will briefly discuss other sexual offences as well. Rape is when a man or boy aged 12 years and above has sexual intercourse with a girl or woman without her consent. There must be penetration but it is sufficient for the male organ to be in the slightest degree within the female’s private parts, that is if the male organ touches the entrance of the woman’s organ. If another person assists the accused person to commit the offence then they become an accomplice. In certain instances the accomplice is the one who will hold down forcefully the rape survivor so that the perpetrator is able to rape her as she will be unable to fight back. In terms of the law a girl under the age of 12 years is not capable of consenting to sexual intercourse at all, thus when a male has sexual intercourse with her he will be charged with rape. Therefore it is not a defence to say that the parties were in a relationship and had agreement for such conduct. The punishment for committing rape is up to life in prison or any shorter period . However, in sentencing the court will also consider various factors such as whether the survivor was infected with HIV, an STI, the trauma that she suffered, the age of the survivor, the number of times the rape took place and whether violence was used in committing the offence.
Sometimes families involved may decide not to report rape because the perpetrator is a family member or someone that they have always regarded with respect. They may thus reach an ‘amicable’ solution which can be the exchange of money or even marriage, but this does not take into consideration the effect that rape has on survivors. The survivor may suffer a lot trauma and depression which if not dealt with properly may lead to suicide. The survivor may be infected with an STI or HIV. The survivor may fall pregnant and end up with an unwanted child. The law does cater for instances where someone falls pregnant due to rape and they wish to terminate the pregnancy under the Termination of Pregnancy Act, but some women due to religious or cultural beliefs may choose to keep the child.
Aggravated indecent assault can be committed by either male or female persons. The offence involves forced penetration of any part of the body. Thus examples include forced anal sex by a male on another male, use of an object etc. If a boy between the ages of 12 -16 years is penetrated without his consent by another male it is aggravated indecent assault. This offence also covers women who perform sexual acts involving penetration on another person without their consent. The punishment is similar to that of rape.
It is therefore important to report sexual offences to the police at the Victim Friendly Unit so that perpetrators can be arrested and prosecuted. The police at the VFU are especially trained to handle sexual offences. The arrest and prosecution of such offenders will curb them from committing other sexual offences on other women and girls. People should not be afraid that if they report they will be called to court as witnesses. These are serious offences and everyone has a duty to report such offences so that such menaces are removed from society. Failure to report may make the perpetrator believe that they can continue committing such crimes without anything being done to them and continue doing so. It is important to preserve evidence as this will help in the prosecution of the offence and especially where DNA testing needs to be done. It is important not to take a bath before you present yourself to a health care service provider, clothing worn when attacked can be wrapped in a newspaper and should not be put in a plastic bag. It is also important that the survivor accesses health care services within 72 hours so that they may be given PEP for the prevention of HIV infection. They should also be given psychosocial support eg counselling so that they can cope with the trauma they would have gone through. CSOs that provide legal aid may also give support to survivors.
After the lapse of the 16 days everyone should continue fighting against rape and advocating for laws and procedures that protect women and girls better.
For more information contact Zimbabwe Women Lawyers Association 134 J Tongogara Street/ 14th Avenue, Bulawayo. Tel: 0292 887185-7.
Online Reporter