Stolen innocence: When the law fails children

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The relevant law, the Criminal Law (Codification and Reform) Act, (Criminal Law Code) provides that the legal age of consent to sex is 16 (Section 61). Sex with under-age girls (aged below 16) is prohibited (Section 64 and 70). You may have noted that I did not say “strictly” prohibited.

RECENT Press reports say Mika Marata, aged 35, and his friend, Bekithemba Maphosa, aged 29, both from Bulawayo, had a sexual encounter with a 15-year-old girl, whom they had plied with alcohol.

By Rumbidzai Dube

The two were charged with rape, but the magistrate, Crispen Mberewere, acquitted them and stated that the girl (whom he called a woman) got what she wanted because she posed naked and did not scream.

It is also reported that the magistrate concluded there was no evidence that the two men actually had sex with her on the day.

Without making a determination on whether the magistrate’s verdict was right or wrong, given that I do not have all the relevant facts and evidence before me, there are some glaring issues in the Press reports, which — if true — need to be examined in the context of violence against women.

First, screaming is not a requirement to prove that one was raped and the absence of a scream does not mean a sexual encounter cannot be rape.

People’s reactions to different scenarios cannot be uniform.

For instance, I remember being nearly bitten by a snake, which was slithering down the branch of a mango tree that I was holding onto while plucking mangoes. I froze silently and my sister had to drag me from harm’s way.

Someone else might have screamed, yet another person might have let go of the branch and run for dear life.

Second, the definition of rape in law is clear; if a man has sex with a woman without her consent, knowing that she is not consenting, he commits rape.

According to our Constitution, a boy becomes a man and a girl becomes a woman at the age of 18 and they are both free to start a family and to marry.

Consenting to sex means; willingly agreeing to have sex, with full knowledge of what you are doing, who you are doing it with and the possible consequences.

For a woman to be capable of consenting to sex, she must be mentally and physically mature, and capable of making a fully informed decision.

She must not be mentally ill, drunk, or drugged or disabled in a way that prevents her from expressing her consent (deaf or dumb). If she is drugged or drunk, one cannot have sex with her and say she consented.

The third issue is on the legal age of consent to sex.

The relevant law, the Criminal Law (Codification and Reform) Act, (Criminal Law Code) provides that the legal age of consent to sex is 16 (Section 61). Sex with under-age girls (aged below 16) is prohibited (Section 64 and 70).

You may have noted that I did not say “strictly” prohibited.

This is because the law is not strict on this issue.

If a man has sex with a girl who is less than 12 years old, he commits rape.

It does not matter whether she agreed, lied about her age, looks mature or not; it is rape. I call this “strict liability rape”.

If the girl is above 12 years but below 14 years, the men who have sex with them commit rape unless they can prove that the girl consented.

There is therefore a presumption that these girls can consent.

The law also provides that proving that the girl (12-14 years old) consented is not a defence, but then says if the man proves that the girl consented he will be charged with the lesser crime of “having sex with a young person”.

The same Criminal Code also states that sex with girls above 14 but below 16 (unless they did not consent), is not rape but “having sex with a young person”.

If the girl did not consent then the correct charge is rape. The law is confused!

On one hand it says “the legal age of consent is 16” and on the other “12 to 16-year-olds are capable of consenting”.

This needs to change. While a 12, 13, 14 or 15-year-old girl may say yes to sex, agreeing to have sex should not be equated with consenting.

Girls under 16 years of age and even up to 18 years, just like a person under the influence of drugs or alcohol, are not capable of informed consent.

They simply lack the emotional and mental maturity to consent.

Most of them fail to realise that they are being manipulated and see themselves as the adults that they think they are.

Some under-age girls may make sexual advances, and, some may have already learned how to bargain with their sexuality at a very young age, but at the end of the day they are still children merely experimenting with their sexuality.

Like all children, they test the boundaries that adults set and maintain and the law should not let that boundary be weakened by giving paedophiles room to escape.

Going forward, our legislators must change “statutory rape” to “strict liability rape”, as a means to deter sexual predators.

They must increase the legal age of consent to sex to 18 years; the same as the legal age of marriage in the Constitution.

We cannot say adults can marry at 18 but say children can consent to sex at 12 if we are to do away with child marriages.

The distinction of under 12s, 12 to 14 year olds, and 15 to 16 year olds defies rational logic.

Assuming that an increase in girls’ years inherently reduces the blame of the men who sleep with them is wrong.

It makes older girls seem blame-worthy and exempts perpetrators of violence; the paedophiles and rapists who must always carry the blame.

Meanwhile, our magistrates and judges, who are entrusted with the interpretation of the law, must apply a purposive interpretation to Section 64 and 70 of the Criminal Law Code and uphold the protective role of laws on statutory rape.

The purpose of the law on statutory rape is to correct a major imbalance of power created by age where young girls may be seen as willing but in truth are being taken advantage of, physically, mentally and emotionally.

Presently, instead of adult men being found “strictly liable” for taking advantage of young girls, young girls are being found strictly guilty of seducing men and wanting to have sex.

The message from the bench should be clear, 12 to 16 year olds are Incapable of consenting to sex and it should be the adult’s responsibility to say no.

A man’s desire to have sex with a 15 year old girl, or the reasoning of a parent who would marry off an underage daughter to a man if she falls pregnant is indistinguishable from the reasoning that a magistrate would use when declaring a 15 year old girl a woman and defend the adult men who molested her.

Our laws are a reflection of us as a society because they are made by people, interpreted by people and enforced by people.

We are permitting the exploitation of our children with these laws, judgements and practices.

We have stolen our children’s innocence.

We need to change the way we think as a society if the way in which our laws protect our children is to change.

Rumbidzai is a human rights lawyer and gender activist, currently working with the African Commission on Human and Peoples’ Rights as a Legal Expert and a 2014 Mandela Washington Fellow. She blogs on MaDube’s Reflections

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