Prosecutor General, Johannes Tomana is on record for telling the Chronicle that 12 year olds can consent to sex, that it is right that the law permits them to consent because without such consent, they would not have the option to marry. He is also reported to have said that 12 year olds’ ability to marry is important because it gives them an option out of poverty or being idle once they drop out of school.
In one breath Tomana gave paedophiles a pat on the back and justified child marriages.
As much as I am troubled by his comments, I am not surprised. A man’s desire to have sex with a 12 year old girl, or the reasoning of a parent who would marry off a 12 or 16 year old daughter to a man-whether she is pregnant or not- is indistinguishable from the reasoning that a magistrate would use when he declares a 15 year old girl a woman and defends two adult men who molested her after plying her with alcohol. This behaviour is anchored in the same context-from which Tomana’s sentiments derive-a patriarchal culture that offers very little protection to women and girls and sees them as sexual objects.
Tomana’s sentiments are not isolated, they exist in the psyche of many; Madzibaba sects who prophesy that God wants them to marry 12 year olds, Makanaka’s mother who thought letting her 15 year old daughter marry a rich man would solve their financial problems, as well as many parents who say to their young daughters “go back where you were” and condemn their young daughter into forced marriage.
More tragic is the fact that these sentiments are entrenched in the letter of our laws. These laws are a reflection of us as a society because they are made by people, interpreted by people and enforced by people. As a society we are permitting the exploitation of our children and have stolen our children’s innocence. Only until we change the way we think as a society, will our children become less vulnerable to exploitation.
What does the law say?
Our criminal law, as contained in the Criminal Law Codification and Reform Act, (Criminal Law Code) provides that the legal age of consent to sex is 16 (Section 61). Sex with under-age girls (aged below 16) is prohibited (Section 64 and 70).
You may have noted that I did not say “strictly” prohibited. This is because the law is not strict on this issue. If a man has sex with a girl who is less than 12 years old he commits rape. It does not matter whether she said yes; she lied about her age, looks mature or not. It is rape. I call this “strict liability rape.” If the girl is above 12 years but below 14 years, the man who has sex with her commits rape unless he can prove that she consented. There is therefore a presumption that a girl who is 12 years old can consent to sex. The law also provides that proving that the girl (12-14 years old) consented will reduce the charge from rape to the lesser crime of “having sex with a young person.”
The Criminal Code also states that sex with girls above 14 but below 16, (unless they did not consent) is not rape but “having sex with a young person.” If the girl did not consent then the correct charge is rape. This crime of “having sex with a young person” carries lesser penalties than rape and often Magistrates go for the lesser sentence of community service.
My problem with the law
Tomana said, “if young girls were asked what they want, most of them would say they should be allowed to have sex at 12.” Let us just say he is right and most of these girls might actually say they want to have sex at 12; first question- is that consent and second thing-does that mean we should do away with statutory rape laws?
The issue of consent
We need to understand what consent means. In simple English it means to agree to do something, to assent to, to allow something to happen, to give permission. In legal language, particularly where sexual crimes are concerned, it means more. Consenting to sex means; willingly agreeing to have sex, with full knowledge of what you are doing, who you are doing it with and the possible consequences. For a woman to be capable of consenting to sex, she must be mentally and physically mature, and capable of making a fully informed decision. She must not be mentally ill, drunk, or drugged or disabled in a way that prevents her from expressing her consent. If she is drugged or drunk, one cannot have sex with her and say she consented. If you hold a knife to a woman’s throat and ask her to say yes to sex, if she says yes you may say she agreed but she has not consented.
This may sound like semantics but it is critical when we relate it to young people. While a 12, 13, 14 or 15 year old girl may say yes to sex; agreeing to have sex should not be equated with consenting. Girls under 16 years of age and even up to 18 years, just like a person under the influence of drugs or alcohol, are not capable of informed consent. This is why in many countries 16 years is the legal age of consent with no derogations to that rule, the way Zimbabwean law is.
Girls under 16, simply lack the emotional and mental maturity to consent. Most of them fail to realise that they are being manipulated and see themselves as the adults that they think they are. Some under-age girls may make sexual advances, and, some may have already learned how to bargain with their sexuality at a very young age, but at the end of the day they are still children merely experimenting with their sexuality. Like all children, they test the boundaries that adults set and maintain and the law should not let that boundary be weakened by giving paedophiles room to escape.
The purpose of statutory rape
Instead of defending Magistrates who protect paedophiles, Tomana should have asked himself why laws on statutory rape exist. The purpose of the law on statutory rape is to correct a major imbalance of power created by age where young girls may be seen as willing but in truth are being taken advantage of, physically, mentally and emotionally. The law protects these girls by creating a presumption that even when they say yes, psychology has proven that in the same circumstances, were they more mature, they would probably have said no. Their immaturity lends them vulnerable and open to abuse by sexual predators.
At the moment- in practice- our law is failing our children. Instead of adult men (sexual predators and paedophiles) being found ‘strictly liable’ for taking advantage of young girls,’ young girls are being found strictly guilty of seducing men and wanting to have sex. The message that courts and magistrates should be sending is that 12-16 year olds are INCAPABLE of consenting to sex and it should be the adult’s responsibility to say no.
What to do…
Our legislators must change ‘statutory rape’ and ‘having sex with a young person’ to ‘strict liability rape.’ This means there should be no excuse for men who are caught having sex with minors. This should deter sexual predators. Lawmakers must increase the legal age of consent to sex to 18 years; the same as the legal age of marriage in the Constitution. We cannot say adults can marry at 18 but say children can consent to sex at 12 if we are to do away with child marriages. The distinction of under 12s, 12-14 year olds, and 15-16 year olds defies rational logic. Assuming that an increase in girls’ years inherently reduces the blame of the men who sleep with them is wrong. It makes older girls seem blame-worthy and exempts perpetrators of violence; the paedophiles and rapists who must always carry the blame.
We, (people of Zimbabwe) must police each other. Let us demand laws that protect children and use the laws to report paedophiles. Let us chastise our children who may think they are mature and want to have sex with older men. We must stop marrying off our children to save face when they fall pregnant or to use them as a solution to our financial problems. We must value girls’education. We must call out individuals who think like Tomana and challenge them to be humane.
Children need our protection not licenses to be exploited by sexual predators, the way Tomana has done with his comments.