STATUTORY RAPE, AGE CONSENT

WELCOME to our weekly column on the SODV Act (2018). Using our experience training on the Act in communities and workplaces across the country, this column is written to help all emaSwati learn about the contents of the Act and its application in our daily lives.

Following  yesterday’s page 11 story in the Times of Eswatini; ‘Farmer arrested for impregnating wife (14)’, this week we take a closer look at what the law says about statutory rape and consent.

Sexual violence against children is a global problem and a growing concern in Eswatini. According to UNICEF 2007, approximately one in three females in Eswatini experience some form of sexual violence as a child. What is disheartening is that often sexual abuse on children is committed by people who are part of the child’s immediate environment, such as parents, the extended family, boyfriends or girlfriends, teachers and schoolmates. Sexual violence is a violation of human rights and can have devastating mental and health consequences on children.

Rape is defined as when an individual unlawfully and intentionally commits an act of sexual penetration with another without their consent. Statutory rape happens when an adult (person aged above 18 years) has sexual relations with a minor (person aged below 18 years). The difference between Rape and Statutory Rape is the age of consent, which after the enactment of the Sexual Offences and Domestic Violence (SODV) Act of 2018, it changed from being 16 to 18 years. This means that the legal age of consent in Eswatini is 18 years.

Statutory rape refers to sexual relations involving someone below the age of consent. It is based on the notion that a person under a certain age cannot consent to sexual activity because he or she lacks the maturity or judgment necessary to make an informed choice about sexual activity.

This is a strict statutory crime because the underage person’s consent is irrelevant and the intentions of the defendant or what they believed about the age of the other person do not matter. One can be charged for statutory rape even if the minor did not reveal their age, lied about their age, or seemed genuinely interested in having sex.

Often when we think of rape, we imagine a forcible sexual encounter; however, with statutory rape no evidence of force is required. Even when the sex between the two is consensual, the act of having sex with a person under the age of consent is a crime because the individual is too young to legally consent to sex, whether or not force is involved.

Statutory rape in the SODV Act falls under different classifications which include a sexual act in general, regardless of the fact that it now involves a minor. Sexual exploitation, sexual penetration and maintaining a sexual relationship with a child. The most common act that leads to one being charged for statutory rape is maintaining a sexual relationship with a child, which is quoted as follows:

Maintaining a sexual relationship with a child.
37. (1) A person who maintains a sexual relationship with a child commits an offence and shall, on conviction, be liable to a term of imprisonment not exceeding 20 years.

(2) For an adult to be convicted of the offence of maintaining a sexual relationship with a child, the presiding officer shall be satisfied beyond a reasonable doubt that the evidence establishes that a sexual relationship with the child existed.

(3) Notwithstanding anything to the contrary contained in this Act or any other law, in respect of unlawful sexual acts involving a sexual relationship with a child−
(a) the prosecution shall not be required by the Court, law or any person to allege the particulars of any one sexual act that would be necessary if the act were charged as a separate offence; and
(b) the presiding officer shall not be required by law to be satisfied of the particulars of any one sexual act that it would have to be satisfied of if the act were charged as a separate offence.

(4) An adult may be charged not only with the offence of maintaining a sexual relationship with a child but also with one or more other offences contained in this Part
(6) In this section, ‘sexual relationship’ means a relationship that involves more than one sexual act with a child over any period of time.
A popular question that is usually asked during our training sessions, when the topic of statutory rape comes up, is; “What if both people are below the age of consent?” And the answer is that, Eswatini does not have a close-in-age exemption, meaning it is possible for two high school pupils, both under the age of 18, who willingly engage in intercourse, to both be prosecuted for statutory rape. Such instances, however, are not charged under the SODV Act, but under laws such as the Children’s Act and are handled by the juvenile court.

Childhood sexual abuse is traumatising and its effects may last into adulthood. Premature sexual encounters may have long-term effects on individuals and research indicates that childhood sexual abuse may result in social growth and be a cause of many different psychosocial problems. Childhood sexual abuse has been connected with higher levels of depression, guilt, shame, self-blame, eating disorders, anxiety, dissociative patterns, denial, sexual problems and relationship problems.

Survivors of sexual abuse may experience difficulty in establishing interpersonal relationships. Statutory rape laws were made to protect children and teenagers from predatory adults who take advantage of minors. The whole concept of the law is that children do not have the ability to give sexual consent by virtue of the fact that they are too young to make a decision that could have far-reaching consequences such as pregnancy; so sex with an underage child is rape, no matter the circumstances.

Post your comment

Your name:

Your e-mail address:

Add your comments:

Please enter the code you see in the image:

Image:

Code: