The import of all this is that the phrase “extra-marital” in section 70 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] is now redundant. It can no longer be a defence for a person who commits a sexual act with a young person to plead marriage, for child marriage is now an illegal act. The provision thus begs for alignment with the Constitution. 5. SECTION 64 OF THE CRIMINAL CODE Section 70 of the Criminal Code, however, does not operate in a vacuum. There is another clause that brings a new dimension to the provision, and that is section 64 of the Criminal Code. In terms of section 64(1) of the Criminal Code, a person who engages in sexual intercourse, anal sexual intercourse or other sexual conduct with a young person of or under the age of 12 shall be charged with rape, aggravated indecent assault or indecent assault, as the case may be, and not with sexual intercourse or performing an indecent act with a young person or sodomy. In terms of section 64(2), the same shall apply in the case of having a sexual act with a young person between 12 and 14, unless there is evidence that the young person (a) was capable of giving consent to the sexual intercourse, anal sexual intercourse or other sexual conduct; and (b) gave his or her consent thereto. The provision in relevant part, for purposes of reference, is as follows: “64 Competent charges in cases of unlawful sexual conduct involving young or mentally incompetent persons (1) A person accused of engaging in sexual intercourse, anal sexual intercourse or other sexual conduct with a young person of or under the age of twelve years shall be charged with rape, aggravated indecent assault or indecent assault, as the case may be, and not with sexual intercourse or performing an indecent act with a young person, or sodomy. (2) A person accused of engaging in sexual intercourse, anal sexual intercourse or other sexual conduct with a young person above the age of twelve years but of or below the age of fourteen years shall be charged with rape, aggravated indecent assault or indecent assault, as the case may be, and not with sexual intercourse or performing an indecent act with a young person or sodomy, unless there is evidence that the young person⎯ (a) was capable of giving consent to the sexual intercourse, anal sexual intercourse or other sexual conduct; and (b) gave his or her consent thereto. …” We thus see additional protection accorded to the 12-14 years age group. 5.1. Does our law create a form of partial consent? 4