EDITORIAL COMMENT: Young girls need adequate protection

TOMANA-JOHANESSTHE age of consent for sexual relations is now seen in Zimbabwe, as in most other countries, as a legal minefield and source of debate, with recent, and probably ill-judged, comments by Prosecutor-General Mr Johannes Tomana making the debate more fiery, although his views seem to be driven by a desire to solve a social problem rather than worsen another.

The law is precise. A girl under the age of 12 so lacks understanding of what is involved that she cannot consent in any way. Anyone having sexual relations with such a child is charged with rape, and sentences follow those for rape.

But a girl aged 12 to 15 is presumed to have growing ideas and understanding of what is involved. Teenagers, in practice and law, are capable of decisions, both good and bad, and a young teenage girl is not necessarily a helpless victim if she agrees to sexual relations. However, for a number of reasons, both age-related and because of the need to avoid exploitation, the law does not empower her to consent.

Because circumstances vary dramatically, so do sentences, perhaps more than in any other criminal offence. This has been misunderstoond. The courts have to take into account the age of the girl, the gap in ages between the partners, the degree of physical and intellectual maturity, whether the man is in a position of authority or trust, and any evidence of exploitation.

So at one extreme we have a pair of 15-year-olds of the same socio-economic background caught having a consensual affair. Even if that case reached the courts, and the families might prefer to deal with the matter privately, any sentence is unlikely to be severe. At the other extreme a well-off middle-aged teacher, holding a position of authority in the girl’s church, who uses financial and other inducements with the girl and her family to persuade a poor 12-year-old undeveloped slow learner to sleep with him will find ample time in his prison cell to reflect on how society regards his actions.

This sweeping variety of sentences reflects the historical setting of the age of consent.

By the late 18th century growing concerns over exploitation and the need for greater precision saw most common law and civil law jurisdictions set the age of consent and approved marriage at 11 or 12. The next few decades saw the industrial revolution in these jurisdictions, accompanied by rapid unplanned urbanisation, gross economic inequalities, and the breakdown of traditional family and community structures. The result was a surge in teenage prostitution and exploitation, with young teenage girls sold to paramours and brothels.

Pressure for reform built up, culminating in a spectacular set of articles by W. T. Stead, editor of the Pall Mall Gazette, in 1885 exposing the gross exploitation in London and proved by his own “purchase” of a 13-year-old. Over the next few years the age of consent was raised in many of these jurisdictions and their growing empires. The age of 16 was common.

These historical problems have a bearing on Mr Tomana’s suggestions of allowing younger teenage girls to marry. He sees such a legal change as a way of ameliorating teenage poverty and lack of a moral serious future for some girls. He has defined the serious problem accurately; many teenage girls do face a dismal future. But his solution can be rejected on several grounds. Putting aside moral issues, and these are large, there is the better practical solution of more education, self-empowerment and general economic growth. And the experience of 19th century developing countries suggests that far more social problems, and dismal futures, will be generated by a lowering of the age of consent than will be solved.

We need to understand why sentencing varies so dramatically in court cases touching on this age, we need to retain the 16 year age for consent, and need to offer more girls a better future rather than rely on hand-outs from a man. And we welcome President Mugabe’s announcement that Government may outlaw marriage before the age of 18.

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