Section 64 inevitably raises a question: does our law create partial consent of some sort? From the face of it, it does. This then becomes a departure from the general position, on the basis of putative consent. Our law recognises putative consent for those above 12 years of age, although such consent then attracts a lesser offence as opposed to the offence of rape. If age of consent is 16, why is a separate offence created when a child above 12 years of age consents? Is there discordance in the law? In terms of our law, if one has sexual intercourse with a young person below 16 but above 12 years of age, that is not rape, but having sexual intercourse with a young person. Other countries call this “defilement”, and they use that term in their statutes and case law. Thus, in our law, absolute protection is only given to a minor below 12 years of age, in that anyone who has sexual intercourse with a child below 12 years of age is guilty of the offence of rape as opposed to having sexual intercourse with a young person under section 70, whether or not there was consent. This is a function of section 64(1) of the Criminal Code. 5.2. Gendered nature of sexual offences in Zimbabwe One notices that in terms of sections 64 and 70 of the Criminal Code, a man who commits a sexual act on an underage girl is charged with rape, having sexual intercourse with a young person, or performing an indecent act with a young person, as the case may be, whereas a woman who commits the same acts, whether on a boy or girl, will be charged with “performing indecent acts with young persons” or aggravated indecent assault, as the case may be. A woman cannot be charged with the offence of rape or of “having sexual intercourse” with a young person. Section 65 provides for the offence of rape as follows: “65 Rape (1) If a male person knowingly has sexual intercourse or anal sexual intercourse with a female person and, at the time of the intercourse (a) the female person has not consented to it; and (b) he knows that she has not consented to it or realises that there is a real risk or possibility that she may not have consented to it; he shall be guilty of rape and liable to imprisonment for life or any shorter period. …” The provision refers to “a male person”. However, when a woman is involved, she will be charged with aggravated indecent assault under section 66 of the Criminal Code. A male 5