Rape is when a man has sexual intercourse or commits sexual acts with a woman without her consent. Men can only ever have sex with women if women want to. It is women who determine whether or not men have sex. Any other way, without women’s consent, is rape. MIRIAM TOSE MAJOME
Last week, we discussed the popular, but legally invalid inclination to blame victims of rape for the crime. The woman’s conduct, particularly her “provocative” dressing, is generally deemed as the leading cause of rape, notwithstanding that statistics do not support this notion even remotely.
It was established that provocation is not a defence against a rape charge and that rape in effect no sustainable defence unlike other crimes, which do. We continue exploring social and legal issues related to rape including international legal developments. Honest belief defence
It can happen that a man has sex with a woman whether forcefully or not while he honestly believes the woman to be in agreement. If it turns out that he was genuinely mistaken and she had not consented does he have a defence? He might rely on the defence of “honest belief”.
A hallmark English case Morgan v The Director of Public Prosecutions 1975/1976 WLR lends profound insights into this defence. The defendant, Morgan invited three strangers to have sex with his wife.
We can say he was a pimp and he liked to pimp his wife. He told the three men that his wife liked to pretend to struggle yet would actually be enjoying it so they were to disregard her struggling and take it all as part of the fun. Acting on that information, the men had sex with her in turn ostensibly acting on the husband’s word ignoring and subduing her struggles.
The men were arrested and charged with rape and Morgan was charged with aiding and abetting. The men pleaded not guilty arguing that they had genuinely believed the woman had consented as Morgan had reassured. The defence was upheld even on appeal, with the court saying that it is a plausible defence if at the time of the sex the man honestly believes the woman to have consented.
For the defence to succeed, the belief had to be honest and sincere, even if it was an unreasonable belief. That was in 1976 and the defence was thereafter successfully relied upon by many rapists for many years until it was finally struck down in 2002. The revocation was in part due to advocacy by women’s rights groups and to evolving legal philosophy. Can no mean yes?
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The honest belief doctrine stems from the time old myth that women say no when in fact, they mean yes. Some men sincerely believe this myth, resulting in some of them forcing themselves onto women, but without necessarily intending to rape them or thinking that they are doing so.
This, however, is no excuse or defence and many men are often very surprised to find themselves being charged with rape. They actually plead in open court that they thought the woman’s “no” meant yes and that she wanted it.
The belief is that a good girl or woman, who is well-bred, cannot and should not openly agree to having sex without a bit of fight or spirited persuasion by the man. If she readily agrees then she is a loose woman because she is too easy and women care very much for their reputations. So she has to play hard to get because that is the socially appropriate behaviour. Many women believe this and act likewise. The 2002 English court striking down of the Morgan ruling is not binding on our own laws, but it does have persuasive influence. It turned a chapter in legal thinking and philosophy about the honest belief defence. Absence of consent
It is also worth mentioning here that even prostitutes are protected by the law. Even a dyed in the wool brazen prostitute has to consent to sex otherwise if a client forces himself on her it is still rape just as it is for any other woman.
There is a non-exhaustive list of circumstances in which consent is presumed to never have been given. Examples include when the victim is below 12 years as shall be discussed in detail below. When the consent is wrung out of the victim by subjecting her to actual force or threat of force. Blackmailing the victim or a third party. When the woman is unconscious or incapacitated for example if she is too drunk to give valid consent.
Physical or mental disability such, as a speech impairment that prevents her from communicating. It is presumed, therefore, that sexually active mentally incapacitated women are raped whenever they have sex because they are incapable of giving valid consent.
Consent is also absent, where it is given by a third party on behalf of the victim. This is common in cases involving minor children and other weaker individuals. It is very important to note that rape is not necessarily a violent crime. It does not always involve force, struggling and pinning a woman down.
It is a very sophisticated and complicated crime, hence, the reason a woman or girl can be raped repeatedly even for years without even knowing that she is being raped. For example, mentally incapacitated women, minors, drunk or unconscious women are easily taken advantage of without their knowledge or consent. Age of consent
The age of consent in Zimbabwe is 16. Crudely put, it means school boys and school girls from around Form Three and Four are allowed (but not encouraged) by the law to have consensual sex. Many will remember the violent storm torched by the Prosecutor-General Johannes Tomana in 2015 over certain utterances he made about this issue.
Children under 12 are incapable of giving consent for any sexual activity. Section 64 of the Criminal Law (Codification and Reform) Act states that a child under 12 years cannot consent to sex.
Any sexual relations with anyone under 12 are automatically regarded as rape. Even if the girl agreed and has even had sex before it is of no consequence and is no defence because children under 12 are completely incapable of consenting.
The assumption that they did not consent is irrefutable meaning it cannot be argued or disproved. The girl is a child and all children depend on adults to protect them and to make decisions for them. Children should be protected even from themselves and adults should not abuse their position of trust and influence.
The law is rather indefinite for the consent of those children in that middle group between 12 and 16. They are in between being able to consent and being completely unable to. If a man has sexual relations with a girl in this age group he may be able to plead and prove that the girl consented.
However, since the girl is a minor the sexual relations are still a crime but are not automatically regarded as rape. The accused will be charged on a lesser charge of performing a sexual act or indecent act with a minor and it attracts a lesser sentence than rape. In conclusion it is relevant to reiterate here that marriage whether customary or civil can only be contracted legally at 18 years of age.
Families cannot marry off a girl, who is under 18 years if the girl has been raped, has started having sex or has even had a child of her own. It is a criminal offence to contract or facilitate an under age marriage no matter the circumstances. Miriam Tose Majome is a lawyer and a teacher. She can be contacted on [email protected]
