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Recent amendment on the age of consent

by Charlene Angeline Jackson and Blessing Tavonga Mandima


A review of the Presidential Powers (Temporary measures) (criminal Law protection of Children and young persons) Regulations, 2024.


On the 12th of January 2024, in a move welcomed by many the President gazetted statutory instrument 2024-002 under the Presidential Powers (Temporary measures) (criminal Law protection of Children and young persons) Regulations, 2024. 


Legal background to this law


The supreme law of the land, that is the Constitution of Zimbabwe Amendment No. 20 of 2013 in section 81 (1) defines a child as every boy or girl under the age of eighteen years of age and section 78 essentially ousts children from having marriage rights because only people above the age of eighteen years have a right to found a family.  Contrary to this, Section 61 of the Criminal Law (Codification Reform) Act creates a category of children (those between 16 and 18 years of age) in relation to sexual offences, who do not enjoy the same protection as afforded to all children as intended by Section 81 of the Constitution of Zimbabwe.


This prompted the Constitutional case of Kawenda v Minister of Justice, Legal and Parliamentary Affairs & 2 Ors CCZ 3/22  to challenge the constitutionality of this provision and raise the age of consent for sexual activities from 16 to 18 and to create uniformity of the law with the Constitution. 


Part III of Chapter V of the Criminal Law Code created several crimes which involve sexual activities with young persons (previously defined in the Code as boys and girls under the age of 16 years):


  • Section 70 made it a crime for anyone, whatever their age, to have extra-marital sexual intercourse in Zimbabwe with a young person or to commit indecent acts with a young person.

  • Section 71 made the crime extra-territorial, declaring it to be a crime for a citizen or resident of Zimbabwe, whatever their age, to have extra-marital sexual intercourse or to commit indecent acts with a young person outside Zimbabwe.

  • Under Section 76, it was a crime for persons in control of premises to permit anyone to have extra-marital sexual intercourse or to commit indecent acts with a young person in those premises.

  • Section 83, which made it a crime to procure anyone for the purpose of unlawful sexual activities, prescribes a higher sentence if the person procured is a young person.

  • Section 86 made it a crime for the owner of a place to induce or allow young persons to be in the place for the purpose of engaging in unlawful sexual activities.


All these sections protected children under the age of 16 but they did nothing for youth between the ages of 16 and 18.  These were treated as adults by the Code whereas, according to section 81(1) of the Constitution, they are children with the right to be protected from sexual exploitation.


What you need to know about the new law


Section 3 of the Regulations amends section 61 (“Interpretation in Part III of Chapter V”)(1) of the Criminal Law Code  by repealing the definition of “young person” and substituting  it with— “young person” means a boy or girl under the age of eighteen years.


Section 4 of the Regulations further repeals section 70 (“Sexual intercourse or performing indecent acts with young persons”) of the Criminal Law Code and the following is substituted—


 “Sexual intercourse or performing indecent acts with young persons (1) Subject to this section, any person who— (a) has extra-marital sexual intercourse with a young person; or (b) commits upon a young person any act involving physical contact that would be regarded by a reasonable person to be an indecent act; or (c) solicits or entices a young person to have extra-marital sexual intercourse with him or her or to commit any act with him or her involving physical contact that would be regarded by a reasonable person to be an indecent act; shall be guilty of sexual intercourse or performing an indecent act with a young person, as the case may be, and liable to a fine not exceeding level 12 or imprisonment for a period not exceeding ten years or both.


The implications


While the age of consent for sexual relations was previously set at 16 years old, the new law raises the age of consent to 18 years old. Further, this section bridges the gap that previously existed at law where the Criminal code defined a young person as someone below the age of 16 while the Constitution defined a young person as someone below the age of 18 years.


The enactment was thus promulgated as a means to address inconsistency between the Constitution and the Criminal Code ultimately protecting ALL children from sexual exploitation.


This amendment of law has a ripple effect on sections 70(sexual intercourse or performing indecent acts with young persons), 73(sodomy), 75(sexual intercourse within a prohibited degree of a relationship), 76(complicity in sexual crimes), 78(deliberate infection of another with a sexually transmitted disease) , 83(Procuring) and 86(Permitting young person to resort to place for purpose of engaging in unlawful sexual conduct) of the Criminal Code to extend the protection of the law for young persons from sexual violence from the age of below 16 to below 18 and to criminalize an adult to have any sort of sexual activity with a minor.



Double edged sword



The Regulations also inserted a clause in section 4 which protects young persons who have sexual intercourse with each other if the age difference between them is no more than 3 years, from prosecution, unless the Prosecutor-General, after considering a report by a probation officer, issued in terms of the Children's Act [Chapter 05:06], authorises otherwise. This clause provides that:


“Where sexual intercourse or an indecent act takes place between— (a) young persons between whom the difference in age is not more than three years; or (b) a young person and an adult who is not more than three years older than the young person; neither of them shall be charged with sexual intercourse or performing an indecent act with a young person unless the Prosecutor-General, after considering a report by a probation officer appointed in terms of the Children’s Act [Chapter 5:06], has authorised the charge.”


The effect of this provision is that it sanitizes the sexual relations of minors amongst themselves and does not criminalize two young persons having sexual intercourse or is an indecent act, as long they are no more than three years apart. The rationale for this law is that it is common for young persons to enter into romantic relationships and occasionally indulge in sexual activities or to experiment. In these circumstances, neither party would have the legal capacity to have consent to sexual intercourse and to be complicit in the crime of sexual intercourse with a young person. However, the exception to this is where the Prosecutor-General, after considering a report by a probation officer issued in terms of the Children’s Act, decides to charge either one of the young persons with the crime of sexual intercourse or performing an indecent act with a young person.


Conclusion


To conclude, the S.I 2 of 2024 harmonizes the criminal code with the Constitution of Zimbabwe. This law has been hailed for its efforts to protect all young persons and to deter sexual predators from pursuing minors or procuring them for sexual activities.



 

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