Criminal Laws Amendment (Protection of Children and Young Persons Act

This Act amends the Criminal Law (Codification and Reform) Act [Chapter 9:23] and the Criminal Procedure and Evidence Act [Chapter 9:07] to strengthen protection of children, following the Constitutional Court ruling that the previous age of consent was unconstitutional.

The central change is to section 70 of the Criminal Law Code. "Young person" is replaced with "child", defined as a boy or girl under eighteen. Sexual intercourse or an indecent act with a child is an offence carrying a fine up to level 12 or up to ten years' imprisonment or both, and it is expressly no defence that the child consented. It is a defence for the accused to satisfy the court that he or she had reasonable cause to believe the person was eighteen or over, but the prosecutor may rebut that by showing the accused knew or had reasonable cause to believe otherwise.

A close-in-age exception protects teenagers from criminalising each other. Where the act is between children not more than three years apart in age, or between a child and an adult not more than three years older, neither may be charged unless the Prosecutor-General authorises it after considering a report by a probation officer appointed under the Children's Act. This is additional to other laws on charging children.

A new offence of deliberately infecting a child with a sexually transmitted disease is created — expressly including syphilis, gonorrhoea, herpes and HIV — carrying a fine up to level 14 or up to five years' imprisonment or both. If the accused had the disease at the time, knowledge is presumed unless disproved. It is no defence that the child knew and consented. Where a court convicts of both unlawful sexual conduct against a child and deliberate infection, the sentences may not run concurrently.

The Act also rewrites the language of the sex trade. "Prostitution" and "prostitute" become "sex work" and "sex worker" throughout sections 81, 82 and 87, and "brothel" is redefined by reference to sex work. Procuring is recast: procuring anyone for unlawful sexual conduct, to become a sex worker, or to leave Zimbabwe or their residence for those purposes, carries a fine up to level 14, with up to ten years' imprisonment where the person procured is a child and up to two years otherwise. Permitting a child to resort to a place for unlawful sexual conduct carries up to ten years where the child is under twelve and up to seven years where over twelve. Section 76 on complicity is restated so an owner or occupier who knowingly permits a listed sexual crime on their premises, or who detains a person for that purpose, may be charged as an accomplice or accessory, or with kidnapping or unlawful detention, or both. Section 78 is repealed, and the sodomy provision in section 73 is amended by deleting the words "but below the age of eighteen years".

On the procedural side, the Act extends witness protection beyond "vulnerable" witnesses to "vulnerable or incapacitated" ones. Where a witness cannot give evidence orally for any reason, the court may allow evidence by writing, signs or other augmentative and alternative communication — done in open court — and may appoint an intermediary or a support person. An intermediary may be anyone who can communicate with the witness and interpret their writing, signs or sounds, and an intermediary not employed by the State as an interpreter must take the interpreter's oath. A new section confirms these protections are additional to any other law protecting child, vulnerable or incapacitated witnesses.

Two drafting points worth noting. The substituted section 70 is headed "Sexual intercourse or performing indecent acts with children between the ages of 12 and 18" but its text applies to any child under eighteen. And the penalty structure is uneven: the new deliberate-infection offence carries a higher fine level (14) than the core section 70 offence (12) while carrying a much shorter maximum prison term of five years against ten.