Homosexuality and criminality

THE past week witnessed a level and tone of conversation not seen in this country since the criminal trial of the late former President Reverend Canaan Banana. Whatever people’s views on homosexuality, there is no denying that the former St Johns deputy head teacher was very brave to bring the long overdue discussion back into the public fray. Now that the cat is out of the bag and people are talking about it again, it cannot be stuffed back into the bag, to continue pretending there is no cat. In fact, some people love to talk about homosexuality, mostly to express their strong distaste, while those more tolerant are generally less vocal and passionate. The importance of the public discussion cannot be denied, neither can it be swept under the carpet.

Guest column: MIRIAM T MAJOME

The topic is always going to raise itself to national issue status from time to time because it exists. It had been a while since heat generated by the The State vs Banana legal case in 1999 subsided. Somebody had to sacrifice themselves or be sacrificed unwittingly or even not to raise awareness. There are many people who would rather it hadn’t been spoken at all about so as not to offend them or remind them that homosexuals are still here and have not gone away. Homosexuality is a fact and it is a phenomenon observed in every human society and among quite a number of animal species. Homosexual people exist whether or not they are liked and accepted. They are everywhere and many, especially in this society, live in secrecy and are teachers, doctors, priests, students, parents, children, bosses and employees.

Those brave enough to come out find that they actually have legally protected rights. They can even form their own associations and support groups, so the misconception that homosexuality is a crime in this country is baseless. Nobody in Zimbabwe can be arrested merely for being homosexual or declaring that they are one. To this end, homosexuals do not have an obligation to disclose their sexual orientation to anyone such as employers or teachers or even family as they have a right to privacy.

Sexual crimes – Sodomy

Sex crimes and crimes against morality are listed under Part III of the Criminal Law (Codification and Reform) Act Chapter 9:23. The list of sex offences does not include homosexuality. The only crime that pertains exclusively to homosexuality is sodomy, but it must be noted that the dictionary definition of sodomy is not exclusive to homosexuals. In Zimbabwe, sodomy is only criminalised for men who have sex with men in terms of Section 73, but it is in effect the same act for a man and a woman. The dictionary definition of sodomy is indiscriminate as it is merely defines it as anal sex regardless of the genders of the parties. Therefore, people who are repulsed by the notion of men having sex with men anally should equally be repulsed by sodomy between men and women because it is the same thing.

Notably, according to our statutes, it does not matter at all whether the sodomy between men is consensual or not as even when committed in private, it is still a crime. When committed in private it only makes it much harder to catch and prove so many offenders get away with it. It is quite daring and rather unwise to commit sodomy in public places as there is a risk of getting caught. Many luminaries who once occupied very big positions fell from grace after getting caught — the most prominent examples include the rather curious incident of the former ZBC boss Alum Mpofu of the infamous Tipperary saga. Tipperary was an exclusive social club for Harare’s well-heeled gentlemen. The most prominent is the former president, the late Reverend Banana, convicted of many acts of sodomy involving his body guards and members of his football club.

Are homosexuals natural sex predators?

The prime issue that preoccupies the generality of people who are offended by homosexuality is the erroneous belief that homosexuality automatically equates to a natural propensity to commit sex crimes. Homosexuals are automatically deemed dangerous and regarded with great circumspect. Ideally, they would want them banished from society and be kept as far away from children as possible. Needless to say, these fears are not backed up by any actual statistics. The statistics actually show that heterosexuals commit sex offences much more than homosexuals, but it is the homosexuals who are stigmatised.

Furthermore, it is not true as some homosexuals are natural predators. Some are celibate in the same manner heterosexuals can be celibate, and this is why nobody can be arrested merely for being a homosexual. Homosexuals only become sex offenders if they commit any one of the listed sex crimes, otherwise they are not liable for any criminality. They are just ordinary law abiding citizens like any other person earning a living and paying tax. Apart from sodomy, there is no other sex offence that is exclusive to homosexuals that heterosexuals cannot commit. The only distinction is homosexuals have no marriage rights as Section 78 of the Constitution forbids same sex marriages. Other than that, they have the same rights and liberties as any other citizen. They are protected from unfair treatment on the grounds of their sexuality or from being subjected to cruel and degrading treatment.

The listed sex offences and sanctions apply equally to homosexuals and heterosexuals such as indecent assault, prostitution, running brothels, sex with minors, rape, sodomy, aggravated indecent assault, paedophilia and possession of and distribution of pornographic content.

A paedophile is any person heterosexual or homosexual and has a psychiatric disorder that predisposes him or her to be exclusively sexually attracted to pre-pubescent children. Women can also be paedophiles. All children below 12 are completely incapable of consenting to sexual acts and convicted child sex offenders, regardless of their sexual orientation, face up to ten years in prison. Section 87 penalises adults who expose children to prostitution and related crimes. Parents or guardians are strictly prohibited from letting their children associate with prostitution or letting them enter brothels or reside in them. The possession of prohibited articles is also a sex offence. Keeping child pornography pictures in any format is a serious crime. It is prohibited to keep without lawful reason publications, pictures or recorded material that are indecent or obscene. Time and again people lose jobs, entire careers and personal relationships over such scandals and exposures. Section 13 of the Censorship and Entertainment Control Act strictly prohibits the distribution of pornographic material.

There is no distinction between the criminality and gravity of sex offences when committed by homosexuals. Sex offences are serious all the time regardless of the sexual orientation of the offender.

Miriam Tose Majome is a lawyer and teacher. She writes in her personal capacity and can be contacted on enquiries@legalpractitioners.org

1 Comment

  1. ..so true.. this is not an issue of right or wrong, or what any majority group deems to be good practise or not. Its about the basic rights afforded to every citizen regardless of their religion, gender, culture, ethnicity, sexual orientation or race.
    Homosexuality is a reality and as a nation we need to come to terms with that.

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