d.
Unhindered access to sexual and reproductive health care by children below 16
years must be ensured but it must be provided and managed in such a way that
children are protected from medical negligence and poor choices. Furthermore,
these children must have access to redress – bearing in mind their legal incapacity to
take legal action if unrepresented.
Ultimately, it is an exercise in proportionality, and a fine balance must be struck that
achieves greater and enhanced protection of children, and the advancement of their best
interests, ensuring that children are educated to make well-informed decisions where
parental guidance is lacking. The caution to be sounded is that simply attending to one facet
of the issue while neglecting the rest may result in legal inconsistencies that would cause
challenges down the line, in an age in which the discourse is to ensure harmonisation and
consistency of laws and of the legal protection afforded to people.
9.
SEXUAL INTERCOURSE INVOLVING TWO YOUNG PERSONS
When it comes to consensual sexual intercourse involving two young persons, that is, young
people between the ages of 12 and 16 years, our law takes the position that no criminal
offence arises, based on a reading of the provisions of the Criminal Code. Defilement and
statutory rape offences are unique in that there is consent, but nonetheless the statute
creates an offence. The reason for that is to protect children from sexual exploitation by
adults. When it is two children who engage in consensual sexual conduct, however, they are
both victims of premature sex, and the question of exploitation may only arise in
exceptional circumstances.
In Zimbabwe, as with most jurisdictions in Africa, the legislation was silent on the treatment
of young people who engage in consensual sexual activity with each other. Section 70 of the
Criminal Law (Codification and Reform) Act [Chapter 9:23] did not in express terms address
the question of what transpires when two young people between the ages of 12 and 16
years engage in a consensual sexual activity. However, the courts made a definitive
pronouncement on the subject: a young person under the age of 16 years cannot be
charged with “sexual intercourse or performing indecent acts with young persons” under
section 70 of the Criminal Code where the complainant is above 12 years and has consented
to the act. Where the act is non-consensual, however, such a young person will be charged
with rape, aggravated indecent assault or indecent assault as the case may be, bearing in
mind the criminal capacity of juveniles in sexual offences and for criminal offences
generally.
The seminal case on the subject is State v CF (A Juvenile) HH 143-11 before Justices Kudya
and Chitakunye in the High Court. In that review matter, the court had to decide whether
under section 70(1)(a) of the Criminal Code, a male young person can be competently
convicted of engaging in extra-marital sexual intercourse with a female young person. In
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