S v DUBE 2010 (2) ZLR 400 (H)

Flynote

Criminal law - offences under Criminal Law Code - sexual offences - sexual intercourse with young person - charge must be one of rape where young female person is of or under the age of 12 years - age of young person - need to establish age accurately

Headnote

The accused, allegedly aged 18 years, was charged with having extra-marital sexual intercourse with a young person, in contravention of s 70(1)(a) of the Criminal Law Code [Chapter 9:23]. The age of the girl was said in the charge sheet to be 12 years, but no evidence of her age was led. The accused pleaded guilty but denied knowing her age. When the accused was questioned about his understanding of the essential elements of the offence, he did not admit knowing that she was a "young person" as defined in the Code. Section 61 defines "young person" as a "boy or girl under the age of 16 years". No minimum age is provided. The scrutinising regional magistrate was of the view that, in the light of s 64(1) of the Code, the accused should have been charged with rape. This section provides that "A person accused of engaging in sexual intercourse ... with a young person of or under the age of 12 years shall be charged with rape ... and not with sexual intercourse ... with a young person". The trial magistrate was of the view that s 70(4) of the Act was permissive in that it provides that rape is a competent charge for intercourse with a female person below the age of 12 years. Because the complainant was aged 12 years and not below the age of 12 years, the magistrate considered that a charge under s 70(1) was competent.

Held, that it is always critical to determine the exact age of the complainant in cases involving the sexual abuse of children. This derives from the provisions of the Code which give rise to varying types of charges and the penalties to be meted out. What was placed before the court was patently incomplete, if not inaccurate, information. To say the a complainant was aged 12 years was inaccurate and problematic, as it was not clear whether she was celebrating her 12th birthday on the day of the offence, or had already attained that age or was in her 12th year. It was therefore necessary to ascertain the exact age by means of her birth certificate, or from medical evidence as to her probable age if the date of birth was not known. None of this was done. The same applied to the age of the accused.

Held, further that the Code restates the common law position that young persons of and under the age of 12 are incapable of consenting to sexual intercourse. Offenders against this group should not be charged under s 70(1), which relates to sexual intercourse with a young person. A "young person" effectively is one aged 13 years or over but below 16 years. Section 70(4) buttresses this position.