Sex with a minor or rape?

Tinotenda Chihera

Sometime in February, many people were left speechless after it was reported that a 19 year old woman from Mvuma was sentenced to 280 hours of community service after she was convicted of having sex with a young person. Many people are disturbed by the fact that the law distinguishes these two as different acts with different penalties. This article aims to shed more light on the difference between the crime of rape or aggravated indecent assault and that of having sex with a young person.

According to the Criminal Law (Codification and Reform) Act, when a male person has sexual intercourse with a female person below the age of 12 years it is considered to be rape. This is set out clearly and consent is not an excuse because a girl/boy under the age of 12 is deemed incapable of consenting to sex. In such a case he will be liable for up to life imprisonment. This means that it is up to the discretion of the presiding officer, depending on the circumstances of the case, to sentence the offender to a lesser sentence. Where is no minimum prescribed sentence but a maximum one, the presiding officer has room to hand down light sentences, such as community service. It is worth noting that in Zimbabwean law a female cannot be charged with the crime of raping a male, rather a female will be charged with the crime of aggravated indecent assault. The penalty for this crime is however similar to that of rape discussed above.

It’s ironic that rape does not have a minimum prescribed sentence and yet stealing livestock attracts a minimum prescribed sentence which is at least nine years of imprisonment. While we appreciate the value of livestock in our economy and culture, it is clear that humans especially children are priceless in value. Minimum stiff penalties should be imposed for rape. It goes without saying that children are vulnerable and the crime of rape and aggravated indecent assault is not only horrific, but has serious consequences not limited to potential unwanted pregnancies and STIs. The law needs to be responsive to the seriousness and the consequences of rape on the victim.

The Criminal Law (Codification and Reform) Act defines a young person as a person under the age of 16 years. When a person indulges in sex with a person between the ages of 12 and 15 with their consent, it is no longer rape but sex with a young person. If the young person did not consent to having sex it is still rape. Essentially it means that from the age of 12 a person can consent to sex, both girls and boys. While many of us believe the age of consent to be 16 years, a closer look at the crime of sex with a young person will show that a 13-year old can consent to sex and the offender is charged with a lesser crime to that of rape. It gives one chills in their spine to think that a 13-year old girl or boy is said by law to be able to appreciate and consent to sex. Surprisingly the Constitution of Zimbabwe, which is the supreme law of the land, states that anyone below the age of 18 years is a child. There is need to align our laws with the Constitution; the crime of sex with a young person should be struck off and be replaced with that of rape.

The crime of sex with a young person like that of rape does not have a minimum stipulated fine. It attracts a sentence of up to 10 years in prison or up to level 12 fine or both. A level 12 fine is marked to be up to $2 000. The presiding officer looking at the circumstances of the case, can even fine someone $700 or community service as given in our recent case. Our national sentencing pattern needs to be revisited to ensure that deterrent sentences are passed.

From the above it is clear that there is a gap in our law that needs to be patched up, because it leaves children between the ages of 12 and 15 not equally protected as those below the age of 12. Typically a 13-year old is in grade 7 and such a person’s decision making skills have not properly matured to be able to make such a life changing decision. A girl/boy in Form One cannot be given the burden to decide why, when, where and with whom to have sex. They can never responsibly make informed decisions. The law must cease to trivialise and sugar coat rape by terming it having sex with a minor but call a spade a spade and accord stiffer and deterrent sentences.

· Tinotenda Chihera is a Legal Graduate Intern at the Zimbabwe Women Lawyers Association

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