10.1. Close-in-age exemptions What appears quite obvious from the above is the need to protect children in the 16 to 18 age group. Two solutions are apparent: the first would be to increase the age of consent from 16 to 18 so that those under 18 cannot be prosecuted from having consensual sexual intercourse with those under 18 (but above the age of 12). However, it is pertinent to take note that there have been recommendations that the age of consent should not be raised to above the age of 16.12 The second option is to introduce what are referred to as “close-in-age exemptions”. What these exemptions do is that they prevent prosecution of individuals who engage in consensual sexual activity when both participants are significantly close in age to each other, and one or both partners are below the age of consent. Such clauses are popularly referred to as the “Romeo and Juliet laws” in the United States. Some countries in our region have introduced into their laws, the close-in-age exemptions into their criminal statute books. For instance, Namibia does not prosecute adolescents in circumstances where the younger adolescent is below the age of 14 years and the older adolescent is not more than 3 years older, as stated in section 2(2)(d) of the Combating of Rape Act 8 of 2000. However, section 14 of the Combating of Immoral Practices Act 21 of 1980, sets the age of consent at 16 years, with a close-in-age clause of three years. This shows that already at a very early age, children can consent to sex, as long as their partner is not more than three years older. The amended South African Sexual Offences Act law has also done this following the Teddy Bear Clinic judgment, albeit putting the close-in-age at 2 years. 11. THE STATUTORY DEFENCE IN SECTION 70 CASES The crime of defilement is a strict liability offence. Essentially, other than defences that negate voluntary conduct and the defence of compulsion, the only other possible defence is that statutorily created defence. This is a standard across many jurisdictions, including neighbouring countries such as Botswana, South Africa and Malawi. In Zimbabwe, section 70(3) of the Criminal Code provides this statutory defence in the following fashion: “It shall be a defence to a charge under subsection (1) for the accused person to satisfy the court that he or she had reasonable cause to believe that the young person concerned was of or over the age of sixteen years at the time of the alleged crime: Provided that the apparent physical maturity of the young person concerned shall not, on its own, constitute reasonable cause for the purposes of this subsection.” 12 SRHR Africa Trust (SAT)’s global review of the age of consent comes up with a number if recommendations, one of which is “Do not make the age of sexual consent older than 16 years, and do not distinguish between young men and young women”. See SAT “Age of Consent: Global Legal Review” page i. Available at https://www.trust.org/contentAsset/raw-data/b4e4a24b-f66d-4170-aa46-6713e038e139/file. 24