Sexual Abuse and Sexual Exploitation of Children

Sexual exploitation of children

A way forward

Constitutional provisions

The Constitution has these provisions—

• A child who is a female or male person under the age of 18 has the fundamental right to be protected against sexual exploitation and abuse. [s 81(1)(e)];

• in all matters relating to the child the best interests of child are paramount. [s 19(1)];

• under the National Objectives, the State must adopt reasonable policies and measures … to ensure that children are protected against any form of abuse. [s 19(2)(c];

• the State must take all practical measures to protect the child’s fundamental rights and freedoms and to promote their full realisation and fulfilment. [s 11].

Sexual abuse and sexual exploitation of children

The worst forms of sexual abuse of children occur when sexual acts are performed on them without their consent, such as where a man brutally rapes a girl, or a man violently attacks and sodomises a boy. But the law also affords protection against adults who engage in sexual conduct with children who have consented to the sexual acts.¹

The term “sexual exploitation” is not defined in the Constitution, but an adult can be said to sexually exploit a child when he or she takes advantage of and abuses a position of power or authority or trust to force, coerce or entice a child to engage in sexual activity that the child would not otherwise have taken part in. Because of the power imbalance between the person and the child, any ostensible consent on the part of the child is not considered to be legally valid consent.

Need to take stern measures to deal with sexual abuse and exploitation of children

No one could dispute that the girl and boy child must be fully protected against people who prey upon and sexually abuse them and exploit them by taking advantage of their vulnerability. The terrible evil of paedophilia must be confronted with the full force of the law. Stern sentences must be imposed on the offenders to deter them from committing the worst types of non-consensual crimes. Whilst they are locked away, offenders cannot sexually assault children. There must be effective protection against child sex trafficking and sexual grooming of children.

Regrettably, the apprehension and conviction rates in rape and aggravated indecent assault cases remain far too low. But the most effective deterrent for sex offenders is that they will know their crimes will be rigorously investigated and prosecuted to ensure that as many offenders as possible are apprehended, convicted and incarcerated. They are more likely to be deterred if they know they will be caught and severely punished.

We need to substantially expand our capacity to perform DNA testing for the identification of sex offenders and exoneration of those wrongly accused of such crimes. Given the difficulty in detecting child sexual abuse especially by a husband or other man living in the home, there must be a legal obligation on all those likely to have evidence off child sexual abuse to report this to the appropriate authorities such as doctors, nurses, social workers, parents and adult siblings Parents are responsible for the proper upbringing of their children which includes responsibility for the proper guidance of and supervision of the sexual conduct of their children. We need to expand the range of offences to punish parents and guardians who encourage or incite sexual misbehaviour by children. (Presently there are offences such as permitting young persons to resort to places for purpose of engaging in unlawful sexual conduct (s 86) and _{allowing a child to become a prostitute (s 87).}

We must step up efforts to discourage any sexual activity by children by educating children on the dangers of early sexuality. Parents and teachers must vigorously engage in the guidance of children on the dangers of early sex activity. It is, however, unrealistic to believe that we can stop teenage sexual experimentation, which is now taking place at a very young age with children having access to graphic material on the Internet.

As soon as possible, we also need to set up a register of all convicted sex offenders so that when they are released after serving lengthy prison sentences, they can be carefully monitored to try to prevent them committing again these heinous crimes.

Non-consensual sexual crimes

There are three main crimes that criminalise non-consensual sexual assaults. These are rape, aggravated indecent assault and indecent assault. For these crimes, the consent of the victim is a defence. They can be committed upon both children and adults. In what follows I deal only with situations where the victim is a child.

As a child under the age of 12 is irrebuttably presumed not to have the capacity to consent to a sexual act, any person over 12 who performs the sexual act is automatically guilty of the crime. Here it is not correct to charge the accused with the offence under s 70 of the Criminal Code.

The most serious sexual offences that can be committed against a child are rape and aggravated indecent assault. Both these crimes now have the same mandatory penalties: if the crime was committed in aggravating circumstances either life imprisonment or not less than 15 years; or if there are no aggravating circumstances, to a period of not less than 5 years and not more than 15 years.

A male is guilty of rape if he has vaginal or anal sexual intercourse with a female without her consent.² The male can be any male over the age of 12 although males of 13, 14, 15, 16 or 17 may now only be tried in Child Justice Courts.³ The law must exempt these children from the mandatory penalties for this crime.

The offence of aggravated indecent assault is committed when a male or a female, without consent, commits specified sexual acts, other than a man having vaginal or anal sexual intercourse with a female.⁴ The specified sexual acts include a male penetrating the vagina or anus of a woman with an object, a male forcing a woman to suck his penis, a male sodomising a man or a boy and a female forcing the boy to have sexual intercourse with her. Again, the person engaging in such an act with a girl or boy of or below the age of 12 is automatically guilty of aggravated indecent assault as the law deems a child under 12 to be incapable of giving consent to the sexual act.

This crime can be committed by a boy or girl of 13, 14, 15, 16 or 17 years of age but such children only be tried in Child Justice Courts.⁵ The mandatory penalties for this crime must not be applied to child offenders

Consent in more detail

We should include the following into the consent provision in the Code.

“Consent” means that a person with capacity to consent does give consent by freely and voluntarily choosing to engage in the sexual conduct in question.

“Obtaining of consent” in respect of sexual offence that requires absence of consent means that the person seeking to rely upon the defence of consent obtained consent by communicating with the other person to ascertain whether that person has freely and voluntarily consented to the sexual act in question or the other person by free and voluntary conduct has clearly manifested his or her consent to the sexual act.

The Criminal Law Code in s 69 sets out the circumstances in which consent will be absent or vitiated (invalidated) or overborne. These are where the accused:

• uses violence, threats of violence or intimidation or unlawful pressure to induce the other person to submit to the sexual act;

• uses fraudulent misrepresentation to induce the other person to believe that something other than sexual intercourse or an indecent act is taking place;

• impersonates someone’s spouse or lover, induces the other person to have sexual intercourse or to submit to the performance of an indecent act;

• has sexual intercourse or performs an indecent act upon a sleeping person who has not given consent thereto prior to falling asleep;

• has sexual intercourse or performs an indecent act upon a mentally incompetent person;

• has sexual intercourse with or performs an indecent act upon a person who is under hypnosis or is so intoxicated that the person is incapable of giving consent and that person has not given consent before being hypnotised or becoming intoxicated.

There is a substantial body of case law setting out when these provisions apply to various factual situations.

Intimidation, coercion or unlawful pressure or manipulation should be found to be present in situations such as the following:

• a threat by a male employer to dismiss a child employee unless she allows him to have sexual intercourse with her or he or she submits to the performance of the sexual act;

• a threat by a police officer to arrest a child for a crime unless the child submits to the performance of the sexual act;

• a threat by a male teacher or lecturer to fail a student unless the child submits to the performance of the sexual act;

• a threat by a person in charge of distribution of food supplies to displaced persons to withhold food relief to a child unless the child submits to the performance of the sexual act;

• a threat by a person in charge of allocation of houses to ensure that a female will be evicted from her house unless the child submits to the performance of the sexual act;

• the use by a male religious leader to religious indoctrination and distortion of religious doctrine to cause a girl who is a parishioner to have sexual relations with him – probably better treated as fraud leading to an absence of consent;

• a priest or and other person in charge of an orphanage use their authority to force children in their care to engage in sexual activity;

• a person engaged to care for or supervise mentally incompetent children sexually abuse the children.

It is submitted that in all such circumstances, the accused must be charged with rape, aggravated indecent assault or indecent assault as the child has not freely consented and has not given true consent. Consent is not true consent if it is obtained through threats, pressure intimidation, deception or manipulation.

The offence in s 84 of the Criminal Code is unnecessary and should be repealed. It reads:

84 Coercing or inducing persons for purpose of engaging in sexual conduct

Any person who, to enable himself or herself or anyone else to engage in unlawful sexual conduct with another person—

(a) threatens or intimidates that other person; or

(b) applies or administers any intoxicating drug, liquor, matter or thing to that other person; or

(c) causes that other person to take any intoxicating drug, liquor, matter or thing;

shall be guilty of coercing or inducing a person for the purpose of engaging in sexual conduct and liable to a fine not exceeding level ten or imprisonment for a period not exceeding five years or both:

Provided that nothing in this section precludes a person from being charged with or convicted of rape, attempted rape, being an accomplice to rape, or other unlawful sexual conduct if the facts support such a charge or conviction.

All instances constituting this offence should be prosecuted as rape, aggravated indecent assault or indecent assault respectively. The penalty under s 84 would be woefully inadequate for these.

Criminalising sexual activity with consenting children

There is a further sexual offence contained in s 70 of the Criminal Law Code. This offence involves having sexual intercourse with or performing an indecent act on a young person who has consented to the act. This crime is commonly, but misleadingly, known as “statutory rape”. This crime seeks to protect children against sexual exploitation. A person who engages in sexual activity with a child in this age group with the consent of the child is still guilty of this offence as the law lays down that the consent of the child is no defence to this charge.

It is necessary to repeat that where a person performs a sexual act on a child below the age of 12 the accused must be charged with rape, aggravated decent assault or indecent assault as the law provides that a child of this age is irrebuttably considered to be absolutely incapable of giving consent to the sexual act. Here it would be wrong to charge a violation of s 70.

The current provision only protects children who are under the age of 16. Various other jurisdictions also set 16 as the barrier age. Previously it was considered that the children most vulnerable to exploitation were young children under 16 whereas children approaching the age of 18 did not require such protection; they were considered sufficiently mature to be able to look after themselves and avoid being induced by adults to engage in consensual sexual activity.

The Constitutional Court has ruled that this provision must be amended to cover children up to the age of 18 to be consistent with the Constitution. It decided that the State’s constitutional obligation to protect children, that is persons under 18, against sexual exploitation and abuse requires that the barrier age under s 70 should be set at 18. Kawenda v Minister of Justice, Legal and Parliamentary Affairs & Ors CCZ-3-22.⁶ This ruling only relates to s 70 and does not affect the provisions of other sexual offences such as rape and aggravated indecent assault.⁷

Defences to this offence

Marriage is not a defence as all forms of marriage, whether registered or unregistered under the age of 18, so a purported marriage to the child is no defence to this charge.

(3) 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.

Penalty

The penalty for this offence is a fine not exceeding level 12 or imprisonment for up to 10 years or both which is a completely inadequate penalty for the sort of situations referred to above where there has been intimidation or coercion of the child by a person having power or authority.

Sexual exploitation should primarily be dealt with by criminal offences such as rape, aggravated indecent assault and human trafficking and not under s 70.

Exempting children from liability under s 70 for consensual sex with other children

In regards children, s 70(2a) has been inserted. This provides that if both the children involved are over 12 but under 16 which will now be 18, neither will be charged with an offence under s 70 except upon a report of a probation officer showing that it is appropriate to charge one of them with the crime. This provision gives no guidance to the probation officer on how to exercise this discretion, although presumably one factor is that if one is older than the other child, it may be appropriate to charge the older child.

The Constitutional Court of South Africa ruled that the criminalization of adolescent sex was unconstitutional on various grounds such as violation of the right to privacy and dignity, and was contrary to the best interest of the child. The Teddy Bear Clinic for Abused Children Case and RAPCAN and Others v Minister of Justice and National Director of Public Prosecutions CCT 12/13 [2013].

The law impugned in South Africa related to children under the age of 16 whereas the Zimbabwean Constitutional Court judgment will require s 70 to cover children up to the age of 18. However, if a constitutional case were to be brought challenging the criminalization of children who engage in willing, unforced teenage sex, the outcome would probably be the same as in South Africa. In any event, an amendment was passed in South Africa to change the age from 16 to 18 under their counterpart offence. See the South African Criminal Law (Sexual and Related Matters) Amendment Act No. 5 of 2015. This amendment also exempted minors aged 12-16 years from prosecution for the offence once it was established that their sexual conduct was consensual. It also exempted a 16- or 17-year-old from engaging in consensual sexual activities with a 16- and 17-year-old but under the age of 16, provided there was no more than a two-year age gap between the two. (A closeness of age provision).

It is proposed that s 70 of the Zimbabwe Criminal Code be re-formulated to exclude all non-exploitive sexual activity between children who are both under 16.⁸ It should also exempt a 16 or 17-year-old who engages in consensual sexual conduct with another child between the ages of 12-16, provided there was no more than a two-year age gap between the two. (A closeness of age provision)⁹. But a boy of 17 or 16 who “date rapes” a girl by using intoxicants to overcome the girl’s resistance to engage in sexual intercourse must be charged with rape and not statutory rape.

However, all children involved in adolescent sexual activity must receive counselling against engaging in sexual conduct when they are not mature enough to make proper decisions about their sexual behaviour and who are unaware of the detrimental health consequence of early sexual conduct and the risks attached to pregnancy and child bearing.

Limited coverage of statutory rape

It is recommended that all cases of exploitive sexual activity by adults or children upon children who did not or did not give real consent because of pressure or coercion be prosecuted as rape, aggravated indecent assault or indecent assault.

It is further recommended that children who engage in sexual activity with other children be exempt from liability under s 70, with limited exception in respect of 16- and 17-year-olds.

If these recommendations are followed, s 70 would still cover non-exploitive consensual sexual activity by an adult with a child. The purpose of this would still be to criminalise such activity to protect children. It would cover a range of situations. One could be such as an elderly rich man entices a young girl to engage in consensual sex by offering her rewards (here although there could be said to exploitation, consent is not vitiated.) Another could be where a 22 year-old man has sexual intercourse with a 16 year old where the parties are in love and the girl wants to have intercourse. An appropriate sentence could be set that would take account the range of situations to which it would apply. Various aggravating factors could be spelled out, such as a large age gap between the parties and whether enticements have been offered.

Problems with barrier age provision

There is an abiding problem with all barrier age provisions such as that a child under 12 cannot commit a crime. The problem is that the proper application of the provision requires that the precise determination of the age of the person in affected. In Zimbabwe many children still do not have birth certificates, and their ages must be estimated by a process that guarantees that an exact age will be found. In such cases if the estimate suggests the age was very close to a barrier age, the court may decide to give the child the benefit of the doubt and the barrier provision in favour of the child.

Sexual grooming in other jurisdictions

South Africa

Section 15 of the Sexual Offences Act makes it an offence for a person (A) aged 18 or over to meet intentionally, or to travel with the intention of meeting, a child aged under 16 in any part of the world, if he has met or communicated with that child on at least two earlier occasions, and intends to commit a “relevant offence” against that child either at the time of the meeting or on a subsequent occasion. An offence is not committed if A reasonably believes the child to be 16 or over.

England

27.The section is intended to cover situations where an adult (A) establishes contact with a child through, for example, meetings, telephone conversations or communications on the Internet, and gains the child’s trust and confidence so that he can arrange to meet the child for the purpose of committing a “relevant offence" against the child. The course of conduct prior to the meeting that triggers the offence may have an explicitly sexual content, such as A entering into conversations with the child about the sexual acts he wants to engage her in when they meet, or sending images of adult pornography. However, the prior meetings or communication need not have an explicitly sexual content and could for example simply be A giving the child swimming lessons or meeting her incidentally through a friend.

28.The offence will be complete either when, following the earlier communications, A meets the child or travels to meet the child with the intent to commit a relevant offence against the child. The intended offence does not have to take place.

29.The evidence of A’s intent to commit an offence may be drawn from the communications between A and the child before the meeting or may be drawn from other circumstances, for example if A travels to the meeting with ropes, condoms and lubricants.

The Teddy Bear Case in South Africa

Summary of the judgment in The Teddy Bear Clinic for Abused Children Case and RAPCAN Ors and Others v Minister of Justice and National Director of Public Prosecutions CCT 12/13 [2013].