The Sunday Mail
Recently, Prosecutor-General Johannes Tomana, was caught at the centre of a storm when he was quoted in the local print media as having suggested that girls below the age of 16 years but are above the age of 12 years could consent to sexual intercourse or even marriage.
Underage prostitute
Today, I wish to share my views on this rather complex, controversial and topical issue.
As the law currently stands, a girl who has reached the age of 16 years can consent to sexual intercourse. At the same time, the Criminal Law Code provides that a male person who has had sexual intercourse with a girl below that age and with her consent, can escape liability if he shows to the court that when he ravished the girl in question, he had reason to believe that the girl was over the age of 16 years.
This occurs particularly where the girl though actually very much under the age of 16 years, looks apparently physically mature as to mislead any reasonable person to believe that she is over the age of 16 years.
Otherwise a male or female person who engages in sexual intercourse with a boy or girl of below the age of 16 years with her consent, commits what is called statutory rape.
In other words, a person who commits this offence cannot rely on a defence of consent by the girl or boy in question. He/she cannot say: “but the girl/boy agreed to it”.
The law considers that girls and boys who are of the ages between 12 years and 16 years are not mature enough to appreciate the implications and consequences of sexual acts.
According to our Constitution, a child is any person below the age of 18 years. Yet the Children’s Act (Chapter 5:06) describes a child as any person under the age of 16 years.
By virtue of certain other laws in our country, a person below the age of 18 years has no right to vote yet that same person, if she is a girl, is allowed to consent to sexual intercourse upon attaining the age of 16 years.
The question that must, therefore, find an answer is this: does the law so belittle sexual conduct to the extent that a girl who is 16 years old can consent to sexual intercourse and yet forbids that same person from voting?
Something is definitely wrong there. Perhaps it is time our law makers paid attention to this issue with a view to harmonising what a child can or cannot do in certain circumstances.
What is interesting about this matter is that countries the world over, are not in agreement as to the appropriate or acceptable age of consent for girls.
For example, in South Africa, Algeria, Jamaica, Canada, and most European countries, the age of consent is pegged at 16 years as here in Zimbabwe.
Yet in Angola and the US, a girl of 12 years is deemed to be able to consent.
In Nigeria, consent to sexual intercourse is at an unbelievable age of 11 years.
In Botswana, China, Italy and Togo it is 14 years.
In Iceland it is 15 years. In Iraq, Egypt and almost all of the Muslim world, it is 18 years.
In India, it used to be 18 years but has now been lowered to 16 years.
The only logical conclusion to draw from these inconsistencies is that the age of consent largely depends on the beliefs and moral values of a given society.
Those who insist on the age of 16 years or above for consent for girls argue, among many other reasons that, below that age, the girl is not biologically or medically ready to sustain a pregnancy in the event that she inevitably falls pregnant.
In any case, so the argument continues, at age 16 years and below, the girl is still really a child and is herself still in need of parental care.
True. However, in my view, the question whether the girl who is below 16 years old may consent should not be based on biological factors alone. I contend that a girl child is biologically ready to sustain a pregnancy once she begins menstruation because I do not believe that our Almighty Creator could have made a woman in such a way that on the one hand the body now has in place everything that makes her capable of conceiving yet be not ready to carry that pregnancy.
Do not get me wrong. All I am saying is that besides biological factors, the moral values and beliefs of a particular society must determine and govern the age of consent.
I am not, even for one crazy moment, suggesting that the age of consent in our country for girls should be lowered to anywhere below 16 years.
On the contrary and very far away from it, and if I had my own way, I would propose that it be upped to 18 years since we all agreed in our Constitution that a child is every person who is below the age of 18 years.
It would be a scandal of the highest proportions to allow children to bear children.
The age of consent discrepancies I have exemplified earlier, explain why even at the United Nations level, there is currently no age limit set for countries to abide by.
Each country is at large to set the minimum age of consent according to what it believes to be morally upright.
So even though the Prosecutor General appeared to later on make a U-turn on the earlier statements initially attributed to him, it seems to me that we should nevertheless, view the remarks in question very seriously.
Taking an armchair approach to the issues allegedly raised will not resolve the problem.
I refuse and reject the ostrich approach to problems because certainly, in those poor and underprivileged communities in our country, cases of girls below 16 years falling pregnant are not uncommon.
It is also true that in such cases, the men responsible have been brought to book and many of them have served or are serving all sorts of sentences depending on the circumstances of each case.
The result has been that the girl will be left alone with her pregnancy and then later on with the baby and absolutely nothing to support both “mother child” and baby.
It will be a case of a baby taking care of another baby and that is undesirable and unacceptable.
In my view, it is not enough for the law to punish the man responsible without making adequate arrangements for the care of girl and her child in event the man responsible is imprisoned for a lengthy period of time. In fact, cases of the girl and her parents literally begging the court officials for the charges against the offending man to be withdrawn are rampant.
Sometimes the man responsible would have paid lobola and actually looking forward to a “till death do us part” kind of situation with that girl but the law says no, you may not marry her because she is below age although the Minister of Justice is legally empowered to authorise such a marriage in certain circumstances.
In truth, therefore, this issue seems to be much more a sociological problem than a legal headache. Time may have now come for us as a nation to come together and begin to explore other ways of resolving this thorny issue.
Clearly, what we are doing as a country is that by attempting to “protect” the girl child in the present fashion, we are actually exposing her to many socio-economic dangers and challenges.
No wonder some of the girls end up resorting to prostitution in an effort to support both themselves and their children.
In looking at all this, I wish to state very loudly that what I have said above should be the exception rather than the rule.
Clearly in those well-to-do communities where everything is “normal” and both the girl and the man are merely being mischievous, it is imperative that the law takes its usual course against the man who violates a girl whose age is below the age of consent.
Better still, in our jurisdiction a child who is over the age of seven but below the age of 14 is presumed, unless the contrary is proved beyond a reasonable doubt, to lack the necessary capacity to form the intention necessary to commit a crime.
Now if we are to go by this, it means that as a country we can choose to criminalise sexual conduct by a girl below the age of 16 who falls into this class resulting in both the man and the girl being prosecuted for that unbecoming conduct.
Otherwise the questions that then arise out of all this are whether the law as it is currently laid down is saving any useful purpose?
Is the law in conformity with the desires and aspirations of the people it is supposed to serve and protect?
Do we have a living law that conforms to the realities and practicalities of our times?
These and many more questions, remain open.
Feedback: [email protected]
