Despite various definitions of CSA that have been suggested in Zimbabwe, a common position on what constitutes CSA remains elusive and controversial. This definitional crisis comes from the difficulty in reaching a consensus of who constitutes a child. Further controversy comes from the inclusion of the violation of norms and laws of society in the definition of CSA. While the Zimbabwean Constitution defines a child as any person below the age of 18 years, current laws of the country define the age of consent as 16 years. The legal definition creates a legal gap, controversy and a challenge in defining what constitutes CSA at law.
The Judicial Service Commission (2012, p. 13) which is responsible for the Victim Friendly System under study defines CSA as “the involvement of a child in sexual activity with another person that the child does not fully comprehend, is unable to give informed consent to, or the child is not developmentally prepared for and that violates the laws and norms of a society.”
Another definition used in Zimbabwe is offered by Rudd and Brakarsh (2001, p. 4) who define CSA as “sexual activity perpetrated by an adult or a more sexually knowledgeable child on a child for the perpetrator’s sexual gratification.” Rudd and Brakarsh (2001) add that these sexual activities can be actual penetration, attempted penetration, exposure to pornographic material and other sexual contact activities such as fondling and kissing. The above definition looks at the intention of the perpetrator and acts that constitute CSA. The two definitions create definitional crises as follows:
1. The notion of CSA involving a child. As mentioned above, the concept of a child in Zimbabwe stirs controversy, contradiction and a legal gap.
2. Violation of the laws. The Judicial Service Commission (2012) notes that an act of sexual intercourse between two people, one of whom is over the legal age of consent and the other is below the age of consent is deemed unlawful. They go further to define such sexual acts as ‘consensual sexual intercourse with a minor.’ In Zimbabwe, the Criminal Law Codification Act Chapter 9.23 defines the legal age of consent is above 16 years of age. Therefore, sexual activity with a child between
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the ages of 12 and 16 even with their consent is deemed as unlawful consensual sex with a minor. While the Constitution defines a child as being 18 years and below, the age of consent is 16 years.
3. The notion that CSA involves an adult or a more knowledgeable child as the perpetrator. The definitions acknowledge that CSA offenders can be adults or children: persons below 18 years of age. Therefore, CSA offences can be committed by children.
4. Actual penetration versus indecent assault. The legal definitions acknowledge that CSA may also include nonpenetrative acts such as exposure to pornographic and sexual materials.
2.3.1 Forms of CSA in Zimbabwe
While CSA is generally regarded as a singular phenomenon, there are a wide range of circumstances and acts that constitute CSA (Smallbone, Marshal and Worley, 2008). There are various acts that constitute CSA from a Zimbabwean perspective. These acts include rape, ‘consensual’ sexual intercourse with a minor, incest and indecent assault. The following section looks at these in detail:
2.3.1.1 Rape
According to the Zimbabwean Criminal Law Codification Act Chapter 9.23 (2007), rape is regarded as the intentional and unlawful sexual intercourse by a male over 14 years of age, with a woman without her consent. Vaginal penetration even in the slightest degree is sufficient and ejaculation by the male is not necessary. Boys under the age of 14 years are regarded in the law as too young to commit rape. Hence, if boys under the age of 14 years are involved in forced sex they are sent for rehabilitation and not tried. In addition, the law in Zimbabwe views sexual intercourse with a child below the age of twelve years with her consent as rape. This legal definition of rape appears to contradict the social definition of CSA. Following the Judicial Service Commission (2012) definition that CSA involves the violation of social norms, it appears that there exist contradictions between legal definitions of rape and social definitions of CSA offenses. This is so given that there are communities and religious groups that sanction the sexual union of children even below the age of twelve. This further creates the definitional crisis.
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2.3.1.2 Consensual Sexual Intercourse with a Minor
According to Loewenson (1997), the legal age of sexual consent in Zimbabwe is 16 years. Girls under the age of 12 years are legally incapable of consenting to sexual intercourse. Consensual sexual intercourse with a child between the age of 12 and 16 years is having sexual intercourse with a minor because a child is not regarded as old enough to make an informed decision. Jones and Jemmott (2009) observe that this form of sexual abuse may involve transactions in which sex is exchanged for money, goods and favors which may involve sexual abuse of a minor. This definition accommodates sexual relations with consent of persons between the ages of sixteen and eighteen who, at law, according to the Constitution of Zimbabwe, are children Despite the Constitution of Zimbabwe (2013) defining children as persons under the age of 18 years, the Criminal Law Codification Act Chapter 9.23 (2004) defines the legal age of consent as 16 years. There seems to be a gap of children between the ages of 16 years and 18 years of age. While persons between the ages of 16 years and 18 years are regarded as children, consented sexual intercourse with such persons is permitted at law. The Constitutional judgment of January 2016 only outlawed marriage of persons under the age of 18 years in Zimbabwe. Prior to this judgment any person could marry a child with the consent of the Minister (appointed by the President of Zimbabwe) and or by the guardian of the minor. What the ruling does is outlaw marriage and not sexual intercourse with children between the ages of 16 and 18 years. Children between the ages of 16 and 18 years can willfully have sexual intercourse with any person without any legal sanctions.
2.3.1.3 Incest
Dominelli (1989) defines incest as all unwanted sexual activities that occur between blood relations or individuals who are involved in relationships of trust and in which one individual is subordinate to and possibly dependent upon the other. This form of CSA occurs when a person intentionally has sexual intercourse with another person who is a blood relative or relative by marriage or adoption. Jones and Jemmott (2009) refer to this form of abuse as intrafamilial abuse. Incest is the most difficult form of abuse to identify, manage and prevent, as it occurs in secrecy. In Zimbabwe, incestuous relationships are taboo and against the law. Traditionally, there are cultural sanctions that are brought to ear. At law, the Criminal Law Codification Act Chapter 32 (2007) criminalises incest. Sexual relations between lineal, ascendant or descendant relatives are prohibited. Incest includes sexual relations were one of the party is the sister, brother; stepmother, stepfather, stepdaughter or stepson of the other party
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to the incest is punishable by custodial sentence. Given the observation that most cases involve persons known and related to the child it can be argued that most CSA cases are incestuous.
2.3.1.4 Indecent Assault
Indecent assault is intentional assault involving the sexual organs of either the child or the CSA offender or both the child and the CSA offender. Indecent assault includes such acts as oral sex, fondling, and attempted rape. While Jones and Jemmott (2009) mention other forms of indecent assault as including children used as sexual objects in videos, photos or as pimps; exposure to sexual material through different media such as radio, photos, movies, text, mobile telephone, internet, adult sexual toys, sexual films and materials; exposing children to sexual acts deliberately or unknowingly and uncomfortable or intrusive touching of child as distinctive forms. According to Loewenson (1997) and Rudd and Brakarsh (2001), these acts are classified as indecent assault in Zimbabwe.