The past few weeks have brought the law of statutory rape and its relationship to child marriage into the consciousness of the Zimbabwean public. First, we were horrified that in practice, the courts had set the age of consent at 12-years old. Then, we were further horrified as Prosecutor-General Johannes Tomana enunciated the law of statutory rape, with a further interpretation of ‘let the children get married, because they’re poor and what are they doing with their lives anyway?!’ Tomana claims that he was misquoted, but the audio of the interview published by The Herald begs to differ.
What has been particularly telling for me, is the public response to the matter. On the one hand, we have had the rightfully angry who have protested, written petitions, released statements, called for the alignment of laws, and started the hashtag #TomanaMustGo to punctuate the fact that we cannot condone child marriage. On the other hand, we have had those who have taken to various platforms to support the comments with reasoning centred on the idea that girls of today are so ‘fast’. What has become clear is that we need our laws tweaked, and societal attitudes that sexualise all female bodies and blame them for any and all harm must change if we are to protect Zimbabwe’s children.
Why Zimbabwean Statutory Rape Law Needs Reform
In Zimbabwe, the age of consent is 16 (section 61 Criminal Law Code). However, things get messy in that we have made further age divisions below the age of sixteen that technically allow for the possibility of girls under the age of 16 consenting to sex. Under s64 of the Criminal law code, if someone has sex with someone under the age of 12, that’s definitely rape. No question. If someone has sex with a girl between the ages of 12-14 then that’s probably rape, unless it can be shown that she was a) capable of giving consent and b) she gave consent. If consent is proved, the charge morphs into the less severe crime of sex with a young person under s70. This same section makes sex with a girl between 14-16 years old prohibited as sex with a young person unless it can be shown that no consent was given. Then it is rape. This is a problem, as it essentially hollows out the protection that the law of statutory rape is supposed to provide.
Statutory rape in most places is a strict liability crime. This means that if the accused can be shown to have committed a sexual act with someone under the age of 16, then they shall be found guilty. Matters of consent do not come up at all. This is because the law does not think that persons under the age of 16 are truly capable of consenting to sex because consent involves much more than just assent. It involves being able to process the ramifications of our actions such that we are making fully informed decisions.
Consent also implies an understanding about the nature of sexual acts. The mischief that statutory rape is supposed to deal with is the manipulation of girls/ taking advantage of girls such that they agree to sex before they are deemed ready. Statutory rape is supposed to protect children. Yet, our law at the moment seems more concerned with protecting predatory men who have hopped into bed with children, as opposed to the children who have been thus violated. The possibility of consent by children and the possibility of a defence to rape on the basis that the girl seemed like she was sixteen leaves girls open to abuse. The law in this case MUST be changed.
We also need our laws to be aligned to the constitution. We seem to be continuously ignoring the principle of constitutional supremacy i.e. the fact that the constitution is the highest law of the land (section 2 constitution). If we were respecting the constitution it would not be possible to claim that suggesting girls be permitted to marry at 12 is merely a statement of the law, given that the constitution pegs the age of marriage at 18 (section 78) and that any laws or customs which are contrary to the law as stated in the constitution are invalid to the extent of the inconsistency.
Sexualisation of Female Bodies and the Myth of “fast girls”
What has been particularly disheartening for me in the past few weeks is seeing the extent to which the myth of the ‘fast girl’ who goes around waylaying innocent adult men, forcing them to have sex with her is ingrained in the psyches of many.
Men who have sex with children are being presented as hapless victims of feminine wiles as opposed to the predators that they are.
This should not have been surprising given that all women are deemed to exist on the Jezebel-Madonna binary with our moral character inextricably tied to our sexual activities, or the extent to which we seem to be in control of our sexualities. Women are constantly penalised especially when it comes to cases of rape if it can be shown that they seem to have an active sex life or are not ashamed to have a pronounced sexuality.Girls are not protected from such oppression and shaming.
Throughout childhood, we are all socialised to perceive women and female sexuality as dangerous and treacherous. Girls are taught to be in fear of one day being labelled whores, a title that seems to be arbitrarily applied to women with active sex lives, pronounced sexualities or any form of non-respectable independence. This title is often used to denote a person less than worthy of humanity.
As girls grow into puberty, their bodies are increasingly sexualised and they begin to be read by the lens of a patriarchal society and the male gaze not as children. They are actively excluded from childhood on the basis that their bodies are desirable. The law lends a hand by making such prejudice legally tenable. It might technically say that maturity is not to be judged on bodies alone, but there is a lot of weight clearly given to whether or not puberty has occurred. If it has, girls are not only believed as being mature enough to have sex at this age but also as actively seeking out sex, merely be virtue of owning a sexualised body in a public space.
Therefore such girls are not really girls but little women and it’s their fault for having a body like that.
In order to protect girls, we must stop penalising them for the way patriarchy perceives their pubescent bodies. There are a lot of other developmental markers that come way after puberty appears to have been completed.
Who gets a childhood? Classism and Child Marriage
An aspect of the comments on child marriage that seemed to get lost in the fray, was the fact that we seem to be willing to give up poor girls as sacrificial lambs to the socio-economic challenges Zimbabwe is facing. It has been suggested that poor girls should be permitted to marry on the basis that many are school dropouts and don’t have opportunities.
But it should be said that perhaps we should be turning our energy into making the right to a free education under the constitution a workable possibility as opposed to shrugging as we watch the cycle of poverty continue.
All Zimbabweans deserve to be protected from child marriage, not just those sufficiently affluent as to genuinely have had the possibility of a bright future.
Part of the problem is that we as a society don’t seem to think the poor- especially the rural poor- deserve to have a childhood in which they are protected from the evils of society. Instead, we make it seem as though some are just born to suffer, and born capable of dealing with said suffering, and really they should just get on with the business of doing the best they can. We burden poor children with the label ‘strong’ or ‘resilient’ in order to sidestep the idea that they might be suffering harm that we as members of society are entirely complicit in. We are complicit when we only care about protecting girls in our immediate communities from child marriage. We don’t seem as a society to care very much about protecting all girls, just the type of girls who form part of our social lives and privileged classes.
We rely on CSOs to care about the others while pooh-poohing their efforts because they’re ‘paid to do it’. That is simply not good enough. We are perpetuating classism laced with anti-blackness when we deal with the [rural] poor as sub-human, not worthy of the same legal and economic protections many of us take for granted. We are callously content to leave certain segments of society behind. We need to do better, for the sake of all of us.
Main image from www.borgenproject.org