Age of consent law offers high-level protection

THE new changes to the law over the age of consent to sexual or indecent relations go far beyond raising the age from 16 to 18, so it matches the constitutional ban on marriage for anyone under 18.

The amendments to the criminal code offer a lot more protection to children, with even suggesting these illegal relations now banned as well, and those who assist someone to seduce someone under the age of 18 are just as guilty, a provision brought in from the established rape law.

The main thrust of the changes is that children, and everyone under 18 is legally a child, should not even have to come under pressure from seducers. They should, as noted, be allowed to complete their childhood as children.

The sentences for offenders have been examined. They range from fines, not exceeding the very high level 12, and go all the way to imprisonment for up to 10 years.

The very wide range has to reflect the very wide range of circumstances where some adult assumes a child can consent to intimacy, and puts pressure on that child to do so.

It must be remembered that the age of consent is a definition of when a child can legally consent to sexual or physical relations. This means that even if the child under the age agrees, they do not have that legal authority to do so. This is designed to protect children.

When the child is under 12 a new set of rules kick in. Whatever the child that young says or does, sexual relations are always rape or aggravated sexual assault, depending on just what sexual acts were performed, and the sentences there will be higher than 10 years, in most cases with children that young quite a lot higher.

There has been debate in Zimbabwe over the whole matter of age of marriage and age of consent. In 2013 a substantial majority of the people, as had been expressed in the consultative process over many months, thought that the minimum age of marriage should be 18.

This was first of all to ensure that a person entering marriage had a reasonable level of maturity, but secondly tying the minimum age to the age of majority stressed that the only people who could agree to a marriage were the adult couple involved.

Other people could support or hinder the couple, but they could not force a marriage and they could not block a marriage.

A major area of pressure for this minimum marriage age came from the realisation that there had been a lot of forced marriage in Zimbabwe, and far too many underage girls were being forced into marriage.

The new age limit empowered them to at least reject the proposal and be able to seek practical help.

The same arguments logically applied to the age of consent, as the courts realised when this was tested, but it is only with the gazetting of the new regulations altering the criminal code that this has been laid out very clearly.

Age of consent can be tricky to set, but we need to remember that the previous age of 16 was set in Britain shortly before the BSA Company started its conquest of Zimbabwe, and so that is the age we lived with throughout the colonial period and inherited at independence. It was not set in stone, but was rather something that the British wanted.

The battle over the age of consent in Britain in the 19th century was to have the lowest possible age that powerful men who liked sleeping with little girls thought they could get away with as public opinion grew. It started at 12, then crept up to 13. The sudden jump to 16 was the result of a major newspaper campaign, largely over the evils of child prostitution and the sale of young girls into sexual bondage.

A crusading newspaper editor actually tipped the balance when he paid for a 13-year-old girl. Although he was not abusing his position and organised safety for the girl, the mere fact he had paid the money meant he was charged and jailed, and he was always very proud that he had gone to jail on principal.

The resulting row pushed the age of consent to 16, and thus the marriage age to 16 as well.

But we need to remember that this age was simply the result of a late 19th century British debate, and that as a free people in an independent sovereign country we can make up our own mind.

Zimbabwe is not a puritanical country, but there is a strong thread in the cultures that there should be a brick wall between childhood and adulthood, and that is not a bad idea.

The regulations are technically temporary, and we expect this route was followed rather than an amendment Bill in Parliament to see how it worked out in practice so that the final and permanent amendment to the code would work well.

One area that may need adjusting is the age-gap permitted between teenagers getting carried away to avoid most prosecution.

If there is a three year gap prosecution can be waived, but this is at the discretion of the Prosecutor-General, who might well feel in the circumstances that charges need to be laid. Just for example one can imagine if there is a wide disparity between the two, say the rich son of a rich family and a very poor neighbour girl, the Prosecutor-General may feel that criminal influence was used in the seduction.

But some Zimbabweans, while willing to go along with a system that avoids criminal convictions for teenagers of roughly the same age and background who behave extremely unwisely, might twitch a bit over the three year gap, and prefer something like two years or even a maximum of 12 months.

This will no doubt come up in Parliament, and at that stage something in way of statistics will be available, so a rational choice can be

In any case this is a side issue, and simply sets in writing what is already the practice, that the authorities will usually prefer counselling in certain circumstances where there has not been undue influence, rather than criminal convictions.

The main thrust of the new addition to our law is the fact that children are getting extra protection from sexual predators, and there are more obstacles now in the way of those who seek early marriages for female relatives, or where religious groups try to justify some of the practices that have come to light and been complained about.

Here we assume that Parliament will go along with the temporary changes, as they seem to meet the case and seem to plug loopholes that predators have used in the past, although the practical application will find out if misapplied innovation has found an unexpected loophole that needs to be stitched up.

Generally the law seems to not just align the criminal code with the Constitution, but takes serious practical measures to protect teenagers against sexual pressure and sexual predation, and here we seem to advanced quite a long way from what we inherited from 19th century British reformers.