Understanding sex, consent

Sexual Assault - Consent logo

When magistrate Chrispen Mberewere acquitted a 35-year-old Mike Marata of allegedly raping a 15-year-old girl, the nation went ballistic.

By Sonny Jermain

Isn’t that how the law works? The judiciary makes rulings based on the information — the proof — that it had. As I wrote early this year, easy with the punishment, thank goodness that the judiciary does not take vox populi into account!

It’s only in North America where the Judiciary brings in a jury to decide some cases. A jury is a committee that decides the verdict of a criminal case while the judge passes the sentence. Because the American jury is a bunch of people randomly picked right from the streets, the right skin colour, right amount of tears, fainting spell, shiny shoes, ironed shirt or total raggedness can change your life in the dock!

After the highly publicised OJ Simpson and Oscar Pistorious trials in the past 20 years, you’d think that we have a good understanding that proving a crime can be a difficult thing. The courts strictly work on determining criminal intent or lack thereof — guilty or not guilty — that is all. Anything in between is circumstantial and pure gossip.

That is how and why crimes of a sexual nature are difficult. There are two living sides of the story and the onus of the prosecution and defence is to respectively prove or disprove criminal intent. The magistrate or judge is the objective middle man. Please, let’s leave it at that.

This brings us to pleas. The accused or suspect is asked if they accept responsibility of the charges they are suspected or accused of.

Seriously, they actually have to ask! It is the definitive or last resort working theory on proving criminal intent. Thus it is called plea bargaining — the accused admits, therefore, is supposedly remorseful about their criminal intentions and doesn’t waste the court’s time denying. Of course, the accused just well could be lying through their teeth to get a lesser sentence!

So what is consent? As I wrote in 2013 in an article titled Consent: A Key Word in Sex, it means to agree or comply. What I didn’t go into then were the specifics of consent. What is age of consent? It is the development age where a human being is expected to be able to make decisions in, of and/or about their life. Essentially, it is actually the expected age of reason (not the era) — determining right or wrong. I will rather call it the age of reasoning.

It is now widely accepted though not explicitly to be 12, but historically and technically it is seven. A child can virtually file to emancipate themselves from their biological parent or guardian — as in parental divorce! A 12-year-old child can consent to medical surgeries like bum or boob implants, a circumcision, a nose job, abortion — where (and should be) legal — a belly button ring, you name it! That’s what the age of consent broadly means.

Then there is the age of sexual consent — 16 is widely accepted, but in some countries it can be 13, 14 or 15. Remember, issues of sex have always been a problem. Unlike the above-mentioned issues, a child can want at 12. Why is that so? They involve money to pull off — well circumcision is nowadays “free” as in paid for by non-governmental organisations (NGO) — and the average 12-year-old is not expected have money! Child celebrities, by earning dollar-power, are the ones most impacted by this of all children in the world. Thus a parent or guardian can reserve their consent to paying for the “extravagancies” of a 12-year-old.

Why did age of consent come about? It is actually meant to protect children from manipulative and abusive parents, guardians, teachers and/or strangers if the child deems it so. Don’t just say “don’t talk to strangers” to your child, explain why. At school going age – usually seven – a child is expected to be mentally fit to determine basic right or wrong.

Ever heard of the parents who refused a blood transfusion for their dying daughter after a road accident because of their church beliefs? The mother claimed strong prayerfulness — whatever that is. Ever heard of the raging 50-year-old alcoholic night club-roving mother who did her shenanigans in full view of her daughter until the powerful 10-year-old child reported the mother to the police? The amazing young girl even gave a rock solid testimony in court! That’s consent.

Ever heard of the sect that doesn’t immunise its children, doesn’t send them to hospital or school? What about the several incidents of women who pimped their 11-year-old girls for sugar and maize meal? So to the Zimbabwean outraged over the Marata case, you as a city intellectual are obviously a good parent — let’s get that out of the way. You are well aware that a parent needs to keep an eye on their child until 18 because 18 is legally defined as the age of majority, almost universally.

If we hear about a child being raped, let us ask: Where was the parent? Last time I checked, a child is supposed to either be under parental or school supervision until 18. “Supervision” and not control! Obviously parents have to work, but the legal age of majority will always be 18 because children without adult supervision can be wayward.

But luckily, that is why age of consent is 12. It’s legally — or “morally” since we claim yo be über Christians — a gray area, but it is required that you should be able to have an intelligent discussion with your child at that age.

When your child wants to have sex, but because you, as a parent proved beyond reasonable doubt to the child that you were incapable of having an intelligent discussion about issues of sex and sexuality, the child develops a hidden culture from you! The child will have sex in another parent or older person’s house or at home during that day you are at a wedding or funeral! It has always been like this in human history.

A child can, therefore, choose to have sex below 16. Consent is equal to freewill. The case is special for girls because they can get pregnant and issues of power, coercion and seduction over the girl come into play.

Don’t blame the courts. The judiciary is only in the business of passing sentences. It is wrong to call acquitted accused people rapists and paedophiles. It is wrong to refer to their judgments as lesser sentences. “Deterrent” sentences have always been a figment of society’s imagination. Have sentences ever been a deterrent?

I don’t know where the media got it from that the magistrate’s court had “set” the age of consent to 12! It has always been like this. It wasn’t a constitutional court ruling by the way. In human history, there is never a need to be subjective about the law because we always want the law to treat us all fairly in the event of being accused or disgruntled about something.

The courts would have had no other option than to recommend — not force — the accused to marry the girl if she is pregnant because she would have — she would have — attested to seeking emancipation from home to be with a man by defending his “love” proposal in court. If the man — has to be 18 or above — reneges, the court then treats it as a rape case. Therefore, the age of consent being 12 is selectively applied on a case-by-case basis.

From my own analysis, 90% percent of rape cases 12 to 15-year-olds are as a result of parents being emotionally touched because they couldn’t bring their minds to recoup that their child is sexually active.

They then go on to file rape charges. The statistics blind count reported cases as rape statistics, guilty or not guilty. That’s how those numbers work.

The bigger picture is: What are courts to do when the girl claims consent, claims infatuation and/or refuses for the man to be jailed?

Whatever case the prosecution puts up becomes null. Ever heard of the incestuous cousins who told the court that they were “so much in love” no matter what the court had to say? That’s, however, a whole new issue there.

Further, I’ve realised that 75% of prominent rape cases occur outside of Bulawayo, Harare, Gweru and Kwekwe.

Sex is hard to plan for everyone because it’s a two-way street. Statistics are then proof that rapists premeditate it and usually know the victim — survivor in “NGO speak” — very well. Who did you leave your child with? Upon cross examination, does your child exhibit a certain level of sexual comprehension? That is your responsibility and not the court’s.

By the time I was in Grade 6, there were several classmates, mostly girls and some even in Grade 4 who were known to be “doing it”. The average human being has their first sexual experience — not intercourse — at the age of seven. The human female is biologically capable of conceiving at nine. Check your child’s Content primary school textbook. There is a case study of a nine-year-old Gweru girl who shocked Zimbabwe when she got pregnant. I never forgot that story in Grade 6 because I learned about reproductive health issues right there!

The exact same case study is repeated in Form 2 and Form 4 — as is — in Science class! By the time I was in Form 2, half of the girls from my primary school class were mothers. By the time I was in Lower Six, all except for one of the girls from my primary school class were mothers — unmarried mothers and not rape statistics. Schools are not in the business of teaching feelings — they only deal with sex organs and their associated diseases.

So when the Health minister wants to give condoms in schools and the Education minister echoes a similar sentiment two years later, we should be very curious. There are probably some statistics that the two ministries know that you as a parent are refusing to be aware of.

If you are not talking to your child about issues of sex and sexuality, I can bet you your house, fancy phone and everything you own that someone else is. It doesn’t matter whether you are in India, Nigeria or Brazil! Someone could be telling your boy child that it is OK to beat, cheat or sexually abuse women. Someone else could be telling your girl child that it is OK to get beaten, cheat on and sexually abused.

Let’s not compare ages of reasoning and consent with ages of getting an ID, driving and voting. Reasoning and consent are mental-internal processes while getting an ID, driving and voting are physical-external processes. Not everyone has an ID, drives or votes, but everyone thinks.

Sonny Jermain writes in his personal capacity. Part of this piece is an excerpt from his book “I Deserve to Be: Self-worth Is a Silent Killer” that is set to be published end of year. www.sonnyjermain.com

Matter of fact

On March 24, 2015, we ran a story headlined UMDC Collapses in which we stated that the United Movement for Democratic Change — which was touted to be the springboard for a grand coalition of opposition parties — had reportedly collapsed amid reports of fierce fights among its leaders. We also stated that Masvingo MDC-T district secretary Robert Murambatsvina reportedly wrote a letter to the party’s national executive requesting the recall of Daniel Mberikunashe and Godfrey Kurauone, accusing them of having joined the MDC Renewal Team. However, we have since established that the two councillors never joined the MDC Renewal Team as alleged by their rivals. We sincerely regret the inconvenience this misrepresentation may have caused. — EDITOR

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