Crimes involving indecency and invasion of privacy

Imagine walking down a well used dusty path one sunny afternoon.

EVEN though you are alone, you are not worried or afraid because it is a well used path. You are aware that even as you walk, there may be people behind you and ahead of you.

Suddenly, there is a movement and a man appears in front of you. The man opens the zip of his trousers and flashes his genitalia before you.

Such unpleasant occurrences are being experienced by women in one of the small towns in Zimbabwe.

According to these women, this is not being done by one man but there are several spots within the town where you can run into such perverse conduct by strange men. The question then is why these cases are not being reported to the police in order for the culprits to be arrested and prosecuted. The answer may be that the victims are not aware that such conduct constitutes public indecency which is a crime in terms of Section 77 of the Criminal Law( Codification and Reform) Act (Chapter 9:23). Government and organisations have done a lot of work in disseminating information about sexual offences that involve sexual intercourse or physical contact such as rape, aggravated indecent assault or having sexual intercourse with a person under the age of 18.

Literature on these crimes and how to apply the law when one is a victim of such crimes is available.

Little has been said about the other offences such as public indecency, thus this article will focus on discussing these less talked about offences.

Public indecency is committed when a person, male or female, indecently exposes him or herself in the presence of another person in or near a public place. Public indecency can also occur if a person indecently exposes himself/herself while he/she is in a private place but in view of another person.

In addition to the scenario described above, another example of indecent exposure which comes to mind is a practice which used to be common particularly among elderly women.

As an expression of their anger or protest, some elderly women would lift up their skirts or dresses and expose themselves to whoever they would be angry with.

If such behaviour is still taking place, those who do such things could be arrested for public indecency.

Public indecency can also be conducted through words that contain obscene language if such words are spoken in a public place and heard by a person who finds them offensive.

At the ranks where commuters get public transport, sometimes rank marshals and/or touts are heard shouting obscenities at each other or even at the commuters.

Such conduct is a clear example of public indecency.

It only needs someone with the courage to make a police report so that justice can take its course. Singing an obscene song or writing or drawing things that are obscene in a public place are also acts of public indecency.

A crucial point to note is that the law provides some guidelines which the courts have to apply before coming to the conclusion that a crime of public indecency has been committed.

The law emphasises that a person will not be convicted of public indecency unless the words or contact complained of are sufficiently serious to warrant punishment. Factors that are taken into account in assessing the seriousness of the indecent words or conduct include the nature of the words or conduct involved.

There are words that are clearly obscene such as those referring to private parts. However, some words may be ambiguous in meaning, making it difficult for the court to conclude that an act of public indecency has been committed. The age and gender of the complainant is also important in assessing the seriousness of the indecency.

For instance if the complainant is a child or a person of the opposite sex to the offender, that points to the seriousness of the act.

Repetition of the indecent conduct or words is another factor which is considered in deciding on the seriousness of the indecency.

Other factors include the previous relationship between the parties and the extent to which the person who hears the indecent words or witnesses the indecent conduct is offended.

Once the conduct or words are deemed to be serious enough to warrant punishment an offender shall be liable to pay a fine not exceeding level nine or imprisonment for a period which is not more than six months or both.

Another crime which does not usually feature in discussions on sexual crimes is criminal insult.

This may be because criminal insult is not classified as a sexual offence as it encompasses other circumstances which have nothing to do with sexual conduct.

The crime of criminal insult is penalised under section 95 of the Criminal Law (Codification and Reform) Act.

Criminal insult is committed when a person utters words or engages in conduct which impairs the dignity of another.

The offender must have uttered the words or performed the act with the intention of impairing the dignity of the person to whom the words or conduct are directed.

If the person realises that there is a possible risk that his/ her words or conduct will impair the dignity of another, he/she will have committed the crime of criminal insult.

The other circumstance where criminal insult is committed is where a person seriously invades another person’s privacy. Invasion of privacy includes observing a person’s partial or total nakedness. This is where the phenomenon also known as the “peeping Tom” comes in.

However, since Tom is a male name this term must not cause the confusion of assuming that this is an offence committed by males only.

For the avoidance of doubt, both males and females can be convicted of seriously invading another person’s privacy.

There are cases which have been reported particularly of men who peep at women taking a bath. Such cases are a clear example of the invasion of privacy which is prohibited by law.

It is important to note that the element of seriousness which is a requirement in ascertaining whether the public indecency warrants prosecutions also a requirement in allegations of criminal insult.

A court trying a case of criminal insult has to take into account the same factors discussed above such as the nature of the words or conduct and age and gender of the complainant among others in order to satisfy itself of the seriousness of the invasion of privacy or impairment of dignity.

Another essential point is that the person whose privacy is invaded does not have to be aware of the invasion at the time it took place for the charge to stand.

It is sufficient to prove that when he/she became aware of the invasion, he/she felt insulted or degraded by it.

The law precisely mentions one defence which is available to a person charged with criminal insult based on invasion of privacy. If a person invades the privacy of another solely for the purpose of obtaining evidence of his/her spouse’s adultery, he/ she may be exonerated from the charge of criminal insult.

This defence is also available to a private investigator hired by a spouse in these circumstances or another person instructed by the spouse to gather evidence of adultery on his/her behalf.

A person charged and convicted of criminal insult is liable to a fine not exceeding level six or jail for a period not exceeding one year.

The crimes discussed have been normalised in certain societies but they are still crimes. Know the law and use it for a safe community.

Irene Sithole is a ZWLA member. ◆ For feedback, questions and comments please feel free to email - zwla@zwla.co.zw. Look out for the next article in this column next week and the Kwayedza every Thursday. For a 24 hour response to Gender Based Violence issues, call our toll free number 08080131: hotlines 0776736873 / 0782900900