Danai Chirawu Correspondent
In last week’s article, we explored the extent to which a child is legally regarded to have consented to sex. What is apparent is that the law has placed age limits wherein a child is presumed to have consented and where they have not.

The last article was centred on a girl child’s ability to consent. It is therefore necessary to outline the law as it pertains to a boy child. The law has placed the same age limits when dealing with the issue of a boy’s ability to consent as it has on a girl’s. A boy under the age of 12 is legally regarded as being incapable of consenting to sex.

If a boy is forced into sexual intercourse by an adult male or female, it is automatically regarded as aggravated indecent assault, according to Section 66 of the Criminal Code. In Zimbabwe, forced sexual intercourse involving a minor boy child is called aggravated indecent assault and not rape.

If the boy, being between the age of 12 and 15, verbally agrees to have sexual intercourse with an adult, that shall be considered under the crime of sexual intercourse with a young person; or what was formerly known as statutory rape. Any physical contact that is deemed to be sexual but does not include penetrative intercourse will be regarded as indecent assault. If this conduct involves an adult and a male child under the age of 12 years, the adult will be automatically guilty of indecent assault.

It is clear that the law makes three defined statements with regards to a boy child’s ability to consent; firstly that a boy under the age of 12 cannot legally consent to sex and/or any acts of a sexual nature, secondly that boys between the ages of 12 and 15 have limited consensual capacity in that the adult party will not automatically be charged with aggravated indecent assault and finally that boys between the ages of 16 and 17 can engage in consensual sexual activities.

Aggravated indecent assault happens when a man forcibly engages in the penetration of a male’s anus or other parts of his body aside from his genitalia or when a female forces a male or female to have sexual intercourse with them without their consent. This also includes forced anal sex by a male with a female.

If the boy who is the victim of this crime is under the age of 12, the perpetrator will be automatically found guilty of aggravated indecent assault. Once the boy who is between the age of 12 and 15 agrees to have this type of sexual activity with an adult; the adult will be charged with sexual intercourse with a young person. The determining factor will be whether or not the child verbally agreed to such conduct.

Since the boy aged 12 to 15 would have consented; the question may be whether or not that is considered sodomy?

The answer lies in the definition of sodomy, which according to Section 70 of the Criminal Code can be simplified as consensual sex between two males.

The Criminal Code with regards to this crime also adheres to the limitations provided under the ‘age of consent’. If a boy aged 11 years and below verbally agrees to commit activities of a sexual nature with an adult male; the adult will automatically be charged with aggravated indecent assault.

If the sexual activities involve a boy child aged 12 and above but below 16; that is considered as sexual intercourse with a young person.If however the boy is aged 16 years and above, they will both be charged with sodomy since the law states that a child above the age of 16 is legally capable of consenting to   sex.

Indecent assault covers any kind of non-consensual physical conduct of a sexual nature. This crime is aptly covered under Section 67 of the Criminal Code. The question of age remains the same. A boy under the age of 12 cannot consent at all.

It is interesting to note that the maximum sentence which can be given to a person who is found guilty of rape is life imprisonment and this is the same for aggravated indecent assault.

It may be necessary for the law to merge these two crimes under one veil; being rape. In South Africa, the crime of rape includes non-consensual sexual intercourse involving a male and a female, two males, two females and goes as far as including women who force males into having sexual intercourse.

Presently the latter is only covered under the crime of aggravated indecent assault. It might be necessary to unite these two crimes because semantics matter. Because both acts involve forced sexual intercourse, it becomes unnecessary to veil them under two different charges.

There is a general acceptance that once one is forced into sexual intercourse by another; it is rape. If the same emphasis is given to males being forced into sexual intercourse it will allow for the same seriousness to be placed on males who are victims of this crime.

The current criminal law is positive in that although the charges are not the same; acts involving forced sexual intercourse carry the same maximum sentence; which is life imprisonment. It is noteworthy to bring out the fact that consensual sexual intercourse between children of the same age is not regarded as a crime in Zimbabwe.

Where sexual intercourse or an indecent act occurs between young persons who are both over the age of 12 years but below the age of 16 years at the time of the sexual intercourse or the indecent act, neither of them shall be charged with sexual intercourse or performing an indecent act with a young person. This means for example that if a boy and a girl both aged 15 decide to engage in sexual intercourse, neither of them shall be charged with sexual intercourse with a young person.

If however a probation officer who has been appointed as such under the Children’s Act makes a report that the children be charged under the Criminal Code, the court will take that report into consideration. Aside from that and where consensual, this will merely be regarded as child’s play.

This does not mean, however, that a child under the age of 16 but over the age of 12 cannot be either raped or indecently assaulted by their peers. The exemption given by the law herein is only limited to a situation when the children are in agreement. As stated in the previous article, children aged 14 years and above are seen to have the ability and the mental understanding to commit a crime. If a child is forced into sexual intercourse by another child aged 14 and above; that child may be charged with either rape or aggravated indecent assault.

Children under the age of 14 are generally seen to be incapable of committing any crime but this is subject to scrutiny. It is important for the law to protect the rights and needs of all children. If the Constitution states that any person under the age of 18 is a child, it is time for the criminal law to reflect the same values.

The legal stance that a child aged 16 and above can consent to sex does not therefore give adequate protection to all children.If a male child cannot marry  and start a family before attaining the age of 18, surely they cannot be regarded to have the capacity to consent to sex.

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