The law behind crime of rape

OContinued from last week

N THE other hand, had Fuljoy discovered his angel in his room fully dressed and he had himself made sexual advances towards her and she had unequivocally refused but he had, nevertheless, persisted and eventually had his way, Fuljoy would be convicted of rape.

But what if she had played along but in the course of the act, Joyful had strongly refused to further participate? In other words, she had withdrawn her consent mid-air only for Fuljoy to complain that he had crossed the Rubicon and that, therefore, the transaction had to be taken to its logical conclusion, would he be guilty of rape?

In such a case, Joyful’s credibility will come into question.

There would have to be very good reasons why she would tell the court that at first she had agreed but then withdrew that “authority” later on. Ultimately the case will be decided on its own facts and merits bearing in mind that in such situations, it would be dangerous for the court to take an armchair approach.

The court ought to be realistic in assessing the evidence brought before it otherwise innocent men will be jailed.

But what is the position in respect of those cases where the woman is deceived into engaging in a sexual activity such as where she is promised a job but the promise is then not honoured?

Or where a traditional doctor or “prophet“claims that in order to cleanse her of the evil spirits bedevilling her, he has to have sexual intercourse with her?

The position is that such conduct amounts to fraud but this is not the same “fraud” that is contemplated in Section 136 of the Code.

It neither meets the requirements for rape nor for fraud as defined in the said Section 136 because the misrepresentation related only to the results of the act and not its nature.

Put differently, the woman would have consented to the sexual act even though the consent was obtained through misrepresentation by the man.

It might be said the woman was foolish in giving consent under those circumstances.

It is, therefore, up to the woman to jealously guard herself against such “fraudsters”.

In short, if the woman is tricked into engaging in a sexual act with a man, then she cannot turn around and claim that it is was rape.

The situation is, however, different where a man impersonates the husband or lover of a woman and proceeds to engage with her under the genuine but mistaken belief that she is with her husband/lover. In such a case, rape would have occurred.

But if the man impersonates another man not being that woman’s husband or lover probably because he has information to the effect she admires that other man, if he succeeds in carnally knowing her, then there is no rape.

She merely would “defrauded” or tricked.

This is so because the law will not allow her to claim that the person she engaged in the sexual act with was not the one she had intended to.

It would be difficult to sustain a rape case in such a situation.

I now turn to rape in so for far as what the law calls having sexual intercourse with a young person is concerned.

According to the Code, a young person is a boy or girl who is below the age of 16 years.

The law lays down that a girl who is have been under the age of 12 years is completely incapable of consenting to sexual intercourse.

There is a presumption which cannot be rebutted that such a young person cannot consent to sexual intercourse. Sexual intercourse with such a person is, therefore, prohibited and any person who does so is guilty of the offence of rape even if the girl concerned had “consented”. This much is clear. A bit of rocket science is required to understand the legal position where the victim of the offence is between the age of 12 and 14 years.

In such a case, there is some qualification of sorts that is required, the beginning of which is a rebuttable presumption that a boy or girl between the ages of 12 and 14 cannot consent to sexual intercourse or indecent assault.

A person charged with the offence in such a case can escape the charge if he is able to show through clear evidence that the girl or boy concerned was capable of giving the consent and did, in fact, give the consent.

It will be up to the trial court to assess the evidence and come up with the appropriate verdict.

It sometimes occurs that a person over the age of 16 is charged with the offence of having extra-marital sexual intercourse with a boy or girl under 16 years and he seeks to defend himself or herself by pointing to the apparent physical maturity of the young person.

The physical maturity of the young person concerned does not on its own constitute a defence to the charge.

The accused person in such a case would have to satisfy the court that he had a reasonable cause to believe that the young person was, in fact, 16 years or over.

Great care must, therefore, be taken when dealing with sexual matters that involve young persons.

Finally, the Constitution of Zimbabwe prohibits marriages of persons who are below the age of 18 years.

In the presence of this fact, there is an easy or attractive temptation to think that by the same token, the Constitution has raised the minimum age of consent to sexual intercourse to 18 years.

This is not correct. Sexual intercourse is not reserved for married persons only.

The minimum age of consent remains as I have set out in this article which is as it is laid down in the Criminal Law (Codification & Reform) Act (Chapter 9:23). Tichawana Nyahuma is a researcher and a legal practitioner who writes in his personal capacity. For Feedback: nyahuma.t@gmail.com