Criminal Law Code as at 1st March 2007 63 Amendment of presumption that boys under 14 incapable of sexual intercourse (1) The irrebuttable presumption or rule of law that a boy under the age of fourteen years is incapable of sexual intercourse shall not apply in Zimbabwe in relation to boys who have reached the age of twelve years. (2) A boy over the age of twelve years but below the age of fourteen years shall be presumed incapable of performing sexual intercourse unless the contrary is shown on a balance of probabilities. (3) Subsections (1) and (2) shall not affect any presumption or rule of law relating generally to the criminal capacity of children under the age of fourteen years. 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. (3) A person who engages in sexual intercourse, anal sexual intercourse or other sexual conduct with a mentally incompetent adult person shall be charged with rape, aggravated indecent assault or indecent assault, as the case may be, unless there is evidence that the mentally incompetent 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. (4) If, in the case of a male person who engages in anal sexual intercourse or other sexual conduct with a young male person of or below the age of fourteen years, or with a mentally incompetent adult male person, there is evidence that the young or mentally incompetent person⎯ (a) was capable of giving consent to the anal sexual intercourse or other sexual conduct, and (b) gave his consent thereto; the first-mentioned male person alone shall be charged with sodomy. - 45 -