EDITORIAL COMMENT: Raising age of consent gives full protection

27 May, 2022 - 00:05 0 Views
EDITORIAL COMMENT: Raising age of consent gives full protection

The Herald

The decision by the Constitutional Court this week to align the age of sexual consent with the Constitutional provisions setting the minimum age of marriage to 18 was expected and the ambiguity that existed is now removed.

As expected, there are the usual contrasting reactions between those who look at the age of consent as something that should reflect the practical mores in society and the age of puberty and those who wish to protect children whose mental maturity frequently is below their physical maturity. The waters are also clouded by those with moral agendas.

Historically our age of consent has been tied to English and British law. The age of consent was set under that law in 1275 as 12. And it remained there for precisely 600 years to 1875 when it was pushed up to 13.

There was then a major campaign to fight what was obviously a major social vice, the sale of young teenage girls from extremely poor backgrounds to older men for sexual purposes. The Pall Mall Gazette led the assault and succeeded, with the age of consent pushed up to 16 in 1885, with sexual relations with girls under 13 to be treated exceptionally severely.

This passed into the law of the Cape Colony, under the legislative procedures in place that automatically adjusted the law of British colonies, and so that became the law in Zimbabwe in 1891 when the law of the Cape Colony became the law of the British South Africa Company territories.

And so we have had the law until this week that sexual relations with a child under 16 is a criminal offence and with a child under 13, a child aged 12 or under, being rape.

The law still regards sexual content with a child aged 12 and before as rape, but presumably relations between a child aged 13 to 17 are now the lesser offence. But lesser can still mean severe and lengthy jail terms, depending on the circumstances.

The reason why so many Zimbabweans in the consultative process of putting together the present Constitution a decade ago wanted the minimum age of marriage raised to 18 was basically to fight the social evil of child marriages.

It was felt for a start that something as important as marriage should require the consent of both partners, without the need for parental approval, and that meant they needed to be adults.

The second problem of child marriages is that we once again had enough cases of what amounted to the sale of a child, through gross abuse of lobola customs, into an early marriage.

Teenage girls were being forced into marriage and in many cases did not have any practical or effective way of objecting or refusing, although legally they could.

It must be noted that the Constitutional Court was not making a decision on the basis of morality, although we were in the odd position that premarital sexual relations were legal two years before marital relations, but largely on the grounds that had seen the age of marriage raised to 18.

Legal adults can make up their own minds and often have practical steps they can take to prevent family pressures.

The misalignment between the law on consent and the law on marriage did open another gap, considering the vagueness of the unregistered customary union. You can still get a forced relationship into what is a secret child marriage, and we have had cases where that has happened when the secrecy was breached.

Those who feel the decision was wrong on the basis of teenage sexuality and what actually happens have a point, but this has been embedded in our sentencing policy for offences. Sentences for premarital relations under the age of consent vary dramatically, from a caution to a long jail term.

Basically a couple of 15-year-olds from very similar backgrounds who get carried away without any pressure or coercion usually did not appear in court, with the families sorting it out, or if they did the trial magistrates are extremely lenient on sentencing. This is where cautions or purely suspended sentences come in, essentially telling the pair not to do it again.

An older person, especially if they are in a position of trust or authority over a teenager, even if there is no rape, will usually spend some time in jail and can spend a long time in jail, with a sentence near the rape level.

That huge variation in sentences has caused concern in some quarters, but magistrates and the High Court judges who review their decisions, are dealing with practical matters and so align sentences to the circumstances and those can vary dramatically.

Presumably that sentencing policy will continue, with just the age of consent adjusted. The main difference now is that the older abuser can be jailed when the child is 16 or 17, so we have increased rather sharply the protection we are giving children, even if physically they seem to be mature.

We need to remember that our law is not trying to enforce personal sexual morality. This is why consensual relations between adults have been totally decriminalised and even civil adultery damages are now largely seen as a dead letter.

The laws are there to protect people from non-consensual relations, that is rape and sexual assault, and to protect children, and in other legislation we are upgrading the protection we give children.

The combination of the new legal provisions with the flexible sentencing policy means that the protection for children extends for the full childhood, but with a certain degree of tolerance over mistakes made by teenage couples.

In any case it is a good idea for teenagers to postpone sexual relations until they are in full control of their lives, and if the changes help push that idea this is desirable.

Waiting until 18 is hardly a heartbreaking imposition for those who want to experiment or fool around.

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