Rape

Women and Law in Southern Africa - Zimbabwe.
Address: 16 Lawson Avenue Milton Park.
Telephones: Free Legal Help line - Toll free 08080479.
Email: admin@wlsazim.co.zw.
Website: www.wlsazim.co.zw

Background

• According to the Zimbabwe National Statistics Agency’s (Zimstats) Quarterly Digest of Statistics for the first quarter of 2019, there were 7 738 reports of rape (including attempted rape) made in 2018.
• In January 2019 alone, there were 636 reports of rape with 625 reports of rape being made in February 2019.
• This translates to 21 women being raped on a daily basis, or one woman being raped every 1 hour and 20 minutes. These are only the incidents of rape being reported, so there is every likelihood that the true figures could be much higher. ^[1]

Types of Sexual Crimes

One of the people has been forced or has not consented

Male on Female, adults

If a man's penis touches a woman's vulva (penetration is not required), without her consent, this is rape.

• Section 65 of the Criminal Law (Codification and Reform) Act, defines rape as:

- “(1) If a male person knowingly has sexual intercourse or anal sexual intercourse with a female person and, at the time of the intercourse
(a) the female person has not consented to it; and
(b) he knows that she has not consented to it or realises that there is a real risk or possibility that she may not have consented to it;
he shall be guilty of rape and liable to imprisonment for life or any definite period of imprisonment”. ^[1]

• A husband can be charged with raping his wife.
• Assisting rape - male or female. May be by holding down victim. Maybe by instructing victim not to resist.

Women cannot be convicted of rape. Only assisting rape, as an accomplice. ^[2]

Statutory Rape/One of the people in not considered able to give consent

With a young person

In addition, sexual intercourse with a young person (being a person below the age of 16) is also defined as a crime under Section 70 of the Criminal Law (Codification and Reform) Act. Other sexual crimes are provided for under the Act, including aggravated indecent assault, and indecent assault, and which carry heavy criminal penalties. Crime is Rape or Engaging in Sex With a Young Person.

A study conducted by the Ministry of Health and Child Care in conjunction with UNICEF and UNESCO, showed more than 4 000 girls aged between 10 and 14 years fell pregnant and were booked to deliver babies at health institutions countrywide between 2019 and 2021. According to the National Assessment on Adolescent Pregnancies in Zimbabwe report, 0,2 percent of maternity bookings in Zimbabwe over that period were for children under the age of 15.

The report also revealed that a huge number of maternal deaths were recorded among young women over the same period. A total of 1 532 maternal deaths were recorded and of these, 376 (25 percent) were among adolescents and young women under 24 years during the same period. The report attributes the increasing incidences of pregnancy among adolescents to the closure of schools and the reported increase in domestic violence due to the Covid-19 pandemic.

The study also found that 30 percent of adolescent girls were sexually active. Approximately 31 percent (134) reported having had forced intercourse in their first sexual encounter. Approximately 75 percent (315) of the first sexual encounter was with boyfriends, only 23 percent (97) with husbands, 1,5 percent (10) with strangers, 0,8 percent (6) with relatives, and 0,1 percent (2) with casual partners. ^[3]

The newspaper article does not mention any arrests being made in connection with these rapes. Consent was not (cannot be) given by someone underage, therefore all these pregnancies - unless as a result of artificial insemination - were the result of rapes.

With a person with intellectual or pyscho-social disabilities

Sexual Activities considered Immoral by the law

Incest/Sex within a prohibited degree of relationship

Sex is prohibited with immediate family, and first and second cousins. "Consent" cannot be given and is no legal defence.

Sodomy

Anal intercourse or any physical contact of a sexual nature between two men. "Consent" cannot be given and is no legal defence. It does not apply to women.

Bestiality

Any person who commits any sexual activity with an animal or bird.

Other Crimes

Any act of violence, including sexual violence, can also be a ground for obtaining a protection order under the provisions of the Domestic Violence Act. A protection order may prohibit the respondent from (amongst other things) committing certain acts; or from coming to the residence at which the complainant resides, works or frequents. Contravention of a protection order will result in arrest.

Events

May 2023 Prisoner Release

In May 2023, President Emmerson Mnangagwa released 4 279 prisoners to ease congestion in Zimbabwe’s jails. There is a capacity for 17 000 inmates, but prisons then held 22 000.
The pardons benefited prisoners who were held for non-violent offences and those aged over 60 who had served at least one-tenth of their sentence by April 18. However, the release included a convicted rapist who had sexually assaulted a nine-year-old girl and was released after serving just one year of his sentence. Fadzayi Mahere criticised the decision to release the rapists before completing their full prison terms, calling it “irrational.”

While it is globally accepted that amnesties are a useful criminological device to minimise incarceration and encourage rehabilitation, such pardons must be made in a reasonable manner as required by section 68 of the Constitution with due regard to the plight of victims.

With respect, it is grossly irrational to release dangerous, unrehabilitated offenders back into society. In particular, releasing rapists who have barely served their sentence and who’ve not demonstrated that they are rehabilitated poses a huge threat to the survivors of the rape and wider society.

Unleashing unrehabilitated rapists back into the communities that they committed rape is not only ultra vires the amnesty instrument, it’s a grossly irrational, negligent act that must be condemned by all progressive voices who care about the safety of women & girls.

^[4]

Further Reading

More resources are available from the Adult Rape Clinic – www.adultrapeclinic.org.zw/ +263 242 793572.
Adult Rape Clinic, Kubatana. Facebook linkedin.com/company/adultrapeclinic/?originalSubdomain=zw
Children affected by violence can also contact Childline Zimbabwe on their helpline: 116
Legal Resources Foundation publications.

References