The
accused received the following sentence:
24
months imprisonment of which -
(a)
8 months imprisonment is suspended for 5 years on condition the
accused is not convicted of any offence of a sexual nature committed
within that period for which he is sentenced to imprisonment without
the option of a fine.
(b)
The remaining 16 months imprisonment is suspended on condition the
accused completes 525 hours of community service at Chivaka Primary
School on the following terms:
(i)
The community service starts on 17/11/14 and must be completed within
18 weeks of that date.
(ii)
The
community service must be performed between the hours 8am to 1pm and
2pm and 4pm each Monday to Friday which is not a public holiday to
the satisfaction of the person in charge at the said institution who
may, for good cause, grant the accused leave to be absent on a
particular day or days or during certain hours. Any such leave of
absence shall not count as part of the community service to be
completed…..,.
My
view is that the sentence is manifestly excessive given the overall
context under which the offence occurred.
Section
70(1) of the Criminal Law (Codification and Reform) Act [Chapter
9:23]
is gender neutral in its thrust in that it seeks to protect both
girls and boys from extra-marital sex when they are young persons.
Where the parties involved are both under 16 our courts have held
that there can be no prosecution in such instances since both parties
are effectively young persons under the age of 16. See
S
v CF (A juvenile)
2011
(2) ZLR 48
which
followed the reasoning in S
v
Juvenile
(RPS)
HB01-03
decided under the then Sexual Offences Act [Chapter
9:21]
as still applicable under the current Criminal Code.
Even
juvenile sex offenders who commit the more serious crime of rape are
not sentenced to imprisonment. See S
v M
2009
(1) ZLR 47.
While
corporal punishment was discussed as an alternative in that case, it
is no longer among the options available for non-custodial remedies
following it being outlawed as unconstitutional. See S
v Chokuramba
HH718-14.
Perpetrators
of the crime of sex with a young person under section 70 often
constitute the predatory male adult who preys on a young girl -
albeit with her consent. However, in addition to adult males as
predominant perpetrators, those who have equally fallen foul of the
provision are adolescent boys over the age of 16 but still children
under the Constitution in terms of section 81(1). They are not young
persons as defined by section 70 of the Criminal Code.
Unlike
in some jurisdictions, ours does not exempt from prosecution
adolescent violators of such provisions when the parties are within a
similar age bracket by two or three years above the minimum (such
as in some states in the United States of America).
Youthful
violators over 16 have to deal with the actuality of punishment which
is often tempered down due to their age - where the circumstances
permit. Sentences, however, can still be harsh.
Reports
in the local media suggest that 66% of teenagers between the ages of
15 and 19 indulge in unprotected sex (see Daily News, Wednesday 28
January, 2015). 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.
In
the context of the prevalence of sexually transmitted diseases
(STDs), including the Acquired Immune Deficiency Syndrome (HIV/AIDS),
and the very real dangers of teenage pregnancy, as resulted in this
case, it is understandable that the law, as well as public opinion,
discourages sex with, and among adolescents. Male and female
adolescents also do not suffer the same consequences from the act of
teenage sexuality. The risks for girls are far graver due to the very
real risk of pregnancy and the attendant problems associated with
early motherhood that arise from such unprotected sex. There are also
risks that arise from illegal abortions using crude means that span
from drinking detergent to use of sticks to extract the foetus.
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.
Also,
law can only do so much to protect teenagers by discouraging sex with
young persons by criminalising the act. It can also only go thus far
to protect adolescent violators by taking age into account so as not
to weigh too heavily on consenting peers. From a law reform
standpoint, increasing the age that defines a young person to 18
would not only accord with the Constitutional definition of a minor
but would hopefully also help to protect girls from adult predators
in particular. Even then, the reality is that law, on its own, in
such instances, cannot be the panacea to problems that have deep
social contexts. Law does not operate in a vacuum. 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 sex education in schools is also another. This seems
imperative since the dominant message of abstinence has obviously not
succeeded in keeping the youth from having sex among their group.
In
this case, the sentence of 8 months imprisonment, albeit suspended on
condition that the accused does not commit any crime of a sexual
nature, is totally uncalled for given the fact that the accused was
also sentenced to community service. At 525 hours, the length of
community service is equally excessive. It amounts to about 75
working days based on a 7-hour working day.
The
suspended prison sentence suggests that the accused belongs to the
category of offenders that poses some danger to society hence the
need to put him on terms of good sexual behaviour. Yet, in the same
breath, if his actions pose any danger, he is being asked to serve
his community service at a primary school where there are many young
girls who could easily put him into temptation. Clearly, given the
circumstances of the case, he cannot be said to pose the same danger
as the predator who seeks under-age girls for sex hence the reason
for placing him at a school to perform his community service.
Community
service, under the circumstances of his case, is sufficiently
rehabilitative and more in tune with a policy approach towards
juvenile justice which places emphasis on rehabilitation rather than
branding such a youth as a criminal.
Accordingly,
for the above reasons the sentence in this case is altered as
follows:
The
accused is sentenced to 210
hours of community service at Chivaka Primary School on the following
terms;
(i)
The
community service starts on 17/11/14 and must be completed within 16
weeks of that date.
(ii)
The
community service must be performed between the hours 8am to 1pm and
2pm and 4pm each Monday to Friday which is not a public holiday to
the satisfaction of the person in charge at the said institution who
may, for good cause, grant the accused leave to be absent on a
particular day or days or during certain hours. Any such leave of
absence shall not count as part of the community service to be
completed.
