adminCatherine Murombedzi H I V
THERE have been times when the public express shock and sadness on seeing an under-age girl strapping a baby on her back. The usual reaction is mwana ane mwana wake (a baby has a baby) and is a statement pregnant with concern. In the past few weeks the press, social media and general talk has been awash with the controversy involved in the age of consent to sexual intercourse by young girls.
At the centre are courts
which have at times given out sentences that have raised the ire of the public.
The public feels that the law has failed to protect the girl child in sexual exploitation. Zimbabwe Women’s Lawyers Association (ZWLA) in a statement has clarified its position on the matter.
The Zimbabwe Constitution states that a person under the age of 18 is considered a child and lacks the maturity and wisdom to make decisions on important issues. Under the Criminal Law (Codification and Reform Act), a person of 16 years and above is deemed capable to consenting to sexual acts thereby sexual intercourse with a person that age is not considered a criminal act by the law.
A child who is below the age of 12 years is regarded completely incapable of consenting to sexual intercourse thereby making sexual encounter with such a crime, which is rape even if the child consented.
Now this all sounds confusing but ZWLA has made it clear and the Act states that if a person has an affair with a child above the age of 12 but below the age of 16 the person will be guilty of indecent assault if they have sexual intercourse.
ZWLA states that it shall be no defence to say that the child consented.
Any person who has marital sexual intercourse with a young person above the age of 12 but under the age of 16, indecently assaults her or otherwise sexually exploits her shall be guilty of sexual intercourse or performing an indecent act with a young person. It shall not be defence to prove that she consented to sexual intercourse. It shall, however, be a defence to prove that the accused had reasonable cause to believe that the young person with whom he had sexual intercourse with was above the age of 16 years.
Courts have taken into consideration the following in mitigation thereby reducing sentences of the accused.
a. The loose moral character of the child
b. The child enticed the accused to have intercourse
c. The accused and the child were generally in love
d. The child was nearly 16
e. The accused is a simple and unsophisticated person from a community in which the law is not well known
f. The accused person is a youth
g. The accused person genuinely believed the victim to be of age.
On the other hand the offence is aggravated if the accused is deemed:
a. Accused is much older than the child
b. The accused person is in a position of trust in relation to the child e.g guardian, caregiver or teacher
c. The sexual intercourse amounts to incest
d. Threats or force were used to force the child to submit
e. The accused has previous such convictions.
The High Court has gone further to rule out that as far as age is concerned if the child is nearly 16 the less justified will be the child’s incapacity to make an informed decision on sexual intercourse.
ZWLA takes the view that the law is failing to protect the child from sexual exploitation and is there in violation of the Constitution of Zimbabwe and the country’s international obligations.
“Section 81 of the Constitution protects the rights of children and provides that every child must be protected from sexual exploitation among other forms of abuse,” notes ZWLA.
“Children are entitled to adequate protection by the courts in particular the High Courts their upper guardian. It is respectfully submitted that the sentencing practices described above, do not live up to the duty that the courts owe children,” ZWLA stated.
The organisation therefore implores the State and all executive legislative and judicial institutions and agencies of Government at every level to respect, protect and fulfil the rights of children, especially girls, to be protected from sexual exploitation. The following need to be done:
1. Align laws to the Constitution and International human rights law as a matter of urgency
2. Include a mandatory minimum sentence such cases so as to deter would be offenders
3. Take measures to eradicate formal and informal child marriages
4.Interpret and implement the law in a uniform manner that best protects the child
5.Uphold all other rights of children such as the right to education as sexually exploited young girls may stop going to school should she fall pregnant and the right to health should the young girl acquire any sexually transmitted infections or HIV.
Sexual exploitation of minors must stop and the courts need to protect the children. They are girls not brides.
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Online Reporter