However, if there is no consent, the offence becomes that of rape, aggravated indecent assault or indecent assault as the case may be, in terms of sections 65, 66 and 67 of the Criminal Code, respectively. 4. EXTRA-MARITAL SEXUAL INTERCOURSE IN THE CONTEXT OF SECTION 70 OF THE CRIMINAL CODE A reading of section 70 (1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] reveals that the offence of “sexual intercourse with young persons” will only attach where the perpetrator has “extra-marital sexual intercourse” with a young person. The question naturally is: what amounts to extra-marital sexual intercourse? Quite literally, the meaning and import of that phrase is that one is only guilty of the offence if the sexual intercourse with a young person happens outside the context of a marriage. If the perpetrator is married to that young person, then there is no offence. In legal terms, it would be a defence to a charge under section 70 to argue that “we were married”. In order to understand this provision in today’s terms, one has to look at the historical context of the provision. Section 70 was crafted in the era of the 1979 Constitution which has since been replaced by the Constitution of Zimbabwe Amendment (No. 20) Act of 2013. Prior to 2013, the law allowed children, that is, any boy or girl below the age of 18, to marry or to be married. The matrimonial legislation, being the Marriage Act [Chapter 5:11] and the Customary Marriages Act [Chapter 5:07] permitted and regulated the manner in which children could be married. However, that position was changed with the introduction of section 78 of the Constitution of Zimbabwe, 2013, which section provides as follows: “78 Marriage rights (1) (2) (3) Every person who has attained the age of eighteen years has the right to found a family. No person may be compelled to enter into marriage against their will. Persons of the same sex are prohibited from marrying each other.” This provision read literally and purposively means that anyone below the age of 18 years cannot marry and be married, and there are no exceptions. The age 18 years was taken from the definition of a child in section 81(1) of the same Constitution. This position has been confirmed by the Constitutional Court in the celebrated anti-child marriages judgment of Mudzuru & Anor v Minister of Justice, Legal and Parliamentary affairs & Ors CC 12-15 which ruled the relevant provision of the Marriage Act [Chapter 5:11] that permitted and facilitated child marriages to be unconstitutional. A harmonised Marriages Bill, 2018 is currently before Parliament which will, among other things, do away with the provisions that were declared unconstitutional by the apex court and expressly prohibit child marriages. 3