10. THE 16-18 AGE GROUP Our Constitution in section 81(1) defines a child or a minor as someone below the age of 18 years. Due to sections 61(1) and 70 of the Criminal Code, however, a child between 16 and 18 years who has consensual sexual intercourse with a young person between 12 and 16 years will be charged and convicted under section 70 of the Criminal Code. Where the complainant is between 12 and 14 years old, the charge of rape should be proffered in terms of section 64(1) of the Criminal Code. Comparatively, alongside theft and unlawful entry, the highest number of cases of children in conflict with the law brought before Zimbabwe’s courts are under section 70 – where minors between 16 and 18 years old are having consensual sexual intercourse with young persons between 12 and 16 years old. This statistic is taken from many years of juvenile justice work done by Justice for Children. Suffice it to give reference to the case of State v Masuku HH 106-15. In that case, the High Court of Zimbabwe reviewed the case of a boy of 17 years, who had consensual sexual intercourse with his girlfriend aged 15 years old, and was consequently convicted of the offense of having sexual intercourse with a young person. In her decision, Justice Amy Tsanga questioned the criminalisation of adolescent consensual sexual conduct. She was cognisant of the intention of criminal law to protect adolescents from sexual predation, discourage early sexual debut between adolescents, and to protect them from the risks and harms of sexual intercourse including sexually transmitted infections (STIs) and teenage pregnancies. However, she observed that an unintended consequence of the criminal law was the punishment of young people in romantic relationships, because the law did not distinguish between the predatory adult and the “lover-boy or girl”. In her judgment, she noted that “Ignoring the reality of consensual sex among teenagers and adopting an overly formalistic approach to the crime can result not only in an unnecessarily punitive sentence, but also a criminal record and stigmatisation as a sex offender”, and further that “Sex among peers is a reality of adolescent sexuality. It does not justify a suspended imprisonment term for the teen male offender who has had sex as part of a romantic relationship with a peer”. Justice Tsanga expressed the view that criminalising minors for having consensual sexual conduct was probably not the best way to achieve the intention of protecting adolescents, especially girls, from harms of sexual conduct. In her words: “To stem the dangers that arise for girls in particular from teenage sex, part of the answer would appear to lie in policy makers and society accepting the prevalence of youth sex and fashioning appropriate interventions. Availing contraceptive protection is one such intervention. A more rigorous and open approach to what is actually taught as sexual education in schools is another”. In short, the court recognised the vulnerability of the 16-18 age group in cases of consensual sexual intercourse with a young person as defined in the Criminal Code, as our law does not currently protect such juvenile perpetrators. Yet the 16-18 age group falls squarely within the definition of a child in terms of section 81(1) of the Constitution. 23