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ZIMBABWE High Court rules that, depending on the circumstances, statutory rape does not usually warrant a custodial sentence.
In a landmark ruling that has potential to trigger public outcry, two learned judges of the High Court have ruled that, depending on the circumstances, statutory rape does not usually warrant a custodial sentence.
The 2013 Constitution set the minimum age of consent at 18.
The judges pointed out that while the law clearly states that those convicted of statutory rape could be condemned to up to a decade in jail, the general trend in such cases was that perpetrators were allowed to get away with light fines.
“The purpose of this provision is clearly to deter the vulnerability of minors from sexual abuse which, at law, they are deemed not to have capacity to consent to sexual activities. However, it is the salient facts in casu, which make me conclude that the respective learned magistrates grossly misdirected themselves on sentence. In all instances, the accused persons were in love with the complainants and the sex was consensual in all cases,” noted Ndewere.
She went on to quote previous cases in which other judges had been lenient on these sex offenders.
“However, indulging in sex with a minor remains a crime, in spite of the complainant’s willingness. But then the sentencing should be appropriate. The sentencing trends on sex with minors otherwise referred to as statutory rape have been dealt with in depth by the late (Justice Arnold) Mutema in the case of State versus Tshuma HB 70/13. From that judgment, it is apparent that non-custodial sentences are usually passed in such offences,” she said.
“It is therefore correct to conclude that, depending on circumstances, statutory rape does not usually warrant a custodial sentence,” Justice Ndewere pointed out.
The ruling, flies in the face of Zimbabwe’s punitive sex laws.
Section 70 (1) (a) of the Criminal Law (Codification and Reform Act) [Chapter 9:23] reads: “Subject to subsection (2), any person who: Has extra-marital sex with a young person or . . . shall be guilty of sex or performing an indecent act with a young person, as the case may be, and liable to a fine not exceeding level twelve or imprisonment for a period not exceeding 10 years or both.”
Source – dailynews