March is known as #WomensMonth because the International Women’s Day is commemorated on 8 March. It is a global day celebrating the social, economic, cultural, and political achievements of women. The day also marks a call to action for accelerating women’s equality.
And talking of women’s equality, an account on X (formerly Twitter) asked, ‘Why is it less common for women to get custodial sentences? I’m not trying to be sexist here but this is worrying if it is a trend. Things are skewed in favour of women?’
In response, lawyer, Fadzayi Mahere responded that ‘sentencing principles are built that way’ and ‘there’s so much you can argue in mitigation of sentence for a woman’.
The discussion then turned to rape with one account asking, ‘When you say “under our law, woman cannot commit rape” , what happens to woman who have inappropriate relationships with minors?’.
One of the responses was, ‘It’s called aggravated assault and therefore carries a lighter sentence than exactly the same offence committed by a man and therefore classified as rape.’
In this fact sheet we address these questions:
- Under our law, can women commit rape?
- What happens to women who have inappropriate relationships with minors?
- Does aggravated assault carry a lesser sentence than rape?
Definitions
Rape – the Criminal Law (Codification and Reform) Act defines rape in Section 65:
1) If a male person knowingly has sexual intercourse or anal sexual intercourse with a female person and, at the time of the intercourse
(a) the female person has not consented to it; and
(b) he knows that she has not consented to it or realises that there is a real risk or possibility that she may not have consented to it; he shall be guilty of rape and liable to imprisonment for life or any definite period of imprisonment.
Aggravated sexual assault is defined in the same act in Section 66:
1) Any person who
(a) being a male person
(i) commits upon a female person any act, other than sexual intercourse or anal sexual intercourse,
involving the penetration of any part of the female person’s body or of his own body; or
(ii) commits upon a male person anal sexual intercourse or any other act involving the penetration of
any part of the other male person’s body or of his own body;
(b) being a female person
(i) has sexual intercourse with or commits upon a male person any other act involving the penetration of any part of the male person’s body or of her own body; or
(ii) commits upon a female person any act involving the penetration of any part of the other female
person’s body or of her own body;
with indecent intent and knowing that the other person has not consented to it or realising that there is a real risk
or possibility that the other person may not have consented to it, shall be guilty of aggravated indecent assault.
This answers the first question on whether under Zimbabwean law, women can commit rape. No, they can not. Rape is defined as a crime committed by a male on a female.
When a male does the same on a male, or a female does the same on a male, the offense is called aggravated sexual assault.
It is important to note that aggravated sexual assault carries the same sentence as rape. Section 66 of the Criminal Law Act states that a person convicted of sexual assault is ‘liable to the same penalty as is provided for rape’.
The sentence for rape, and therefore, aggravated sexual assault, is provided for in Section 65 as ‘imprisonment for life or any definite period of imprisonment’.
Section 70 of the same act answers the second question: what happens to women who have inappropriate relations with minors:
Sexual intercourse or performing indecent acts with young persons
(1) Subject to subsection (2), any person who—
(a) has extra-marital sexual intercourse with a young person; [email protected]
(b) commits upon a young person any act involving physical contact that would be regarded by a reasonable person to be an indecent act; or
(c) solicits or entices a young person to have extra-marital sexual intercourse with him or her or to commit any act with him or her involving physical contact that would be regarded by a reasonable person to be an indecent act; shall be guilty of sexual intercourse or performing an indecent act with a young person, as the case may be, and liable to a fine not exceeding level twelve or imprisonment for a period not exceeding ten years or both.
Mitigation in sentencing for rape and aggravated sexual assault
a)the age of the person raped;
b) the degree of force or violence used in the rape;
c) the extent of physical and psychological injury inflicted upon the person raped;
d) the number of persons who took part in the rape;
e) the age of the person who committed the rape;
f) whether or not any weapon was used in the commission of the rape;
g) whether the person committing the rape was related to the person raped in any of the degrees mentioned in subsection (2) of section seventy-five;
(h) whether the person committing the rape was the parent or guardian of, or in a position of authority over, the person raped;
(i) whether the person committing the rape was infected with a sexually transmitted disease at the time of the rape.
Resources and Support
- Victim Friendly Unit (VFU) of the Zimbabwe Republic Police:
- The VFU is a specialised unit within the police force that handles cases of sexual and gender-based violence.
- They provide support to survivors and assist with investigations.
- Adult Rape Clinics:
- These clinics provide medical care, including forensic examinations, and counseling to survivors of sexual assault.
- NGOs:
- Organizations like the Musasa Project and the Zimbabwe Women Lawyers Association (ZWLA) offer support services, legal aid, and advocacy for survivors of gender-based violence.
- National GBV helpline:
- There is a toll free national GBV helpline – 575, and others that can provide assistance.
Important
- It is crucial to seek medical attention as soon as possible after a sexual assault.
- Preserving evidence is essential for legal proceedings.
- Survivors have the right to seek support and justice.
Conclusion
While it is true that under Zimbabwean law women cannot commit rape but are charged with aggravated sexual assault, the offense of sexual aggravated assault carries the same penalty as rape. The law in no way allows women to get away with sexual offences. However, as Advocate Fadzayi Mahere noted, there are mitigating circumstances that can be offered to the courts and these tend to skew the scales of justice in favour of women.
