PRESIDENT Emmerson Mnangagwa has evoked the presidential powers to protect children against rape after amending some sections of the Criminal Law (Codification and Reform) Act on rape and indecent assault.
The amendments were announced in a Statutory Instrument (SI) 2 of 2024 referred to as the Presidential Powers (Temporary Measures) (Criminal Laws (Protection of Children and Young Persons)) Regulations, 2024.
The amendment also defines young persons as people below the age 18 years.
In the new law, anyone having an extra-marital affair with a young person, including physical contact, soliciting or enticing a person below 18 years for extra-marital sexual intercourse would be found guilty and liable to a fine not exceeding level 12 or imprisonment for a period not exceeding 10 years or both.
“It shall be no defence to a charge of sexual intercourse or performing an indecent act with a young person to prove that he or she consented to such sexual intercourse or indecent act,” the new regulations indicate.
Where sexual intercourse or an indecent act takes place between young persons below the age of 18 years, whose age difference is not more than three years, no charges would be preferred.
“It shall be a defence to a charge under subsection (1) for the accused person to satisfy the court that he or she had reasonable cause to believe that the young person concerned was of or over the age of 18 years at the time of the alleged crime,” the SI reads.
The law further states that the apparent physical maturity of the young person concerned shall not, on its own, constitute reasonable cause.
It notes that a person who has sexual intercourse or physical contact with a girl below the age of 12 years would be charged with rape, while one commits on a female or male person below the age of 12 years any act that involves penetration would be charged with aggravated indecent assault.
Anyone who has sexual intercourse with a girl below the age of 12 years would be charged with rape, while engaging in physical contact with a girl above 12 years, but below 18 years, would be charged with indecent assault.
A person below the age of 18 will not be deemed to have consented to having sexual intercourse.
The law also indicates that anyone who permits a person to commit sexual intercourse or indecent act with a young person, sodomy, bestiality or sex within a prohibited degree of a relationship would be charged for complicity in sexual crimes.
The person would be charged with being an accomplice or accessory to a crime concerned or kidnapping or detention.
The law also prohibits procuring any other person for purposes of unlawful sexual conduct, to become a prostitute in or outside Zimbabwe or to leave the country or their home to become an inmate of a brothel will also face prosecution.
If a property owner allows a young person to enter or be in a place for the purpose of engaging in unlawful conduct, including children under the age of 12, they would be caged for up to 10 years
If the young person is above the age of 12, the property owner would be fined or sent to jail for seven years.
The person can, however, use as defence to prove that he or she had reasonable cause to believe that the young person was of or above the age of 18 years.
In 2022, constitutional lawyer Tendai Biti successfully lobbied for the review of the age of consent from 16 to 18 at the Constitutional Court.
Government was given 12 months to craft a law to protect children from sexual exploitation.
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