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How does the law protect the by child from sexual violence published on 4 October 2017

In last week’s article, we explored the extent to which a child is legally regarded to have consented to sex. What is apparent is that the law has placed age limits wherein a child is presumed to have consented and where they have not.

The last article was centred on a girl child’s ability to consent. It is therefore necessary to outline the law as it pertains to a boy child. The law has placed the same age limits when dealing with the issue of a boy’s ability to consent as it has on a girl’s. A boy under the age of 12 is legally regarded as being incapable of consenting to sex.

If a boy is forced into sexual intercourse by an adult male or female, it is automatically regarded as aggravated indecent assault, according to Section 66 of the Criminal Code. In Zimbabwe, forced sexual intercourse involving a minor boy child is called aggravated indecent assault and not rape.

If the boy, being between the age of 12 and 15, verbally agrees to have sexual intercourse with an adult, that shall be considered under the crime of sexual intercourse with a young person; or what was formerly known as statutory rape. Any physical contact that is deemed to be sexual but does not include penetrative intercourse will be regarded as indecent assault. If this conduct involves an adult and a male child under the age of 12 years, the adult will be automatically guilty of indecent assault.

It is clear that the law makes three defined statements with regards to a boy child’s ability to consent; firstly that a boy under the age of 12 cannot legally consent to sex and/or any acts of a sexual nature, secondly that boys between the ages of 12 and 15 have limited consensual capacity in that the adult party will not automatically be charged with aggravated indecent assault and finally that boys between the ages of 16 and 17 can engage in consensual sexual activities.

Aggravated indecent assault happens when a man forcibly engages in the penetration of a male’s anus or other parts of his body aside from his genitalia or when a female forces a male or female to have sexual intercourse with them without their consent. This also includes forced anal sex by a male with a female.

If the boy who is the victim of this crime is under the age of 12, the perpetrator will be automatically found guilty of aggravated indecent assault. Once the boy who is between the age of 12 and 15 agrees to have this type of sexual activity with an adult; the adult will be charged with sexual intercourse with a young person. The determining factor will be whether or not the child verbally agreed to such conduct.

Since the boy aged 12 to 15 would have consented; the question may be whether or not that is considered sodomy?

The answer lies in the definition of sodomy, which according to Section 70 of the Criminal Code can be simplified as consensual sex between two males.

The Criminal Code with regards to this crime also adheres to the limitations provided under the ‘age of consent’. If a boy aged 11 years and below verbally agrees to commit activities of a sexual nature with an adult male; the adult will automatically be charged with aggravated indecent assault.

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