Namibia -- Age of Statutory Rape and Sexual Consent

Namibia -- Age of Sexual Consent
Includes info on Zimbabwe also

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Updated 01-2001

Source: http://www.actwin.com/eatonohio/gay/world.htm

NAMIBIA
LAWS: 1. Male homosexuality is illegal.
2. Namibia's Labour Code (Clause 107) explicitly prohibits discrimination based on sexual orientation in the workplace.
NOTE: 1. President Sam Nujoma says homosexuals must be condemned and rejected in our society.
2. Finance Minister, Helmut Angula, is very anti-gay.
3. Home Affairs Minister, Jerry Ekandjo, is extremely anti-gay.
4. Jeremiah Nambinga, Deputy Home Affairs Minister, is extremely anti-gay.
COURT:1. The High Court in Windhoek on June 24 reaffirmed a German lesbian's right to permanent residence status based on her relationship with her Namibian partner. Judge Harold Levy found that since heterosexual couples are recognized for common-law relationships  -- "universal partnerships" -- then, given the "equality provision in the Constitution and the provision against discrimination on the grounds of sex, I have no hesitation in saying that the long-term relationship between the applicants in so far as it is a universal partnership, is recognized by law."

ZIMBABWE LAWS: 1. Homosexual activity is illegal, punishable by up to 10 years in prison.
NOTE: 1. On August 1, 1995, president Robert Mugabe called homosexuality an
abhorrent offense against nature. He is extremely anti-gay.
2. Norbert Makoni, a member of Parliament, advocates the whipping of
homosexuals. He is very anti-gay.
3. Patrick Chinamasa, Attorney General, is very anti-gay.




Source: http://www.interpol.int/Public/Children/SexualAbuse/NationalLaws/

Namibia - Namibie - Namibia             Windhoek

I. Ages for legal purposes
Age of simple majority    The legal age of majority is twenty-one (21) years (Age of Majority Act 57/1972).

Age of consent for sexual activity
A girl under the age of twelve (12) years can not legally consent to sexual intercourse. While the
legal age of consent for a boy is seven (7) and older, even if the girl has in fact given consent for
sexual intercourse, the act is considered rape.

If a girl aged between twelve (12) and sixteen (16) consents to sexual intercourse, the accused is not
guilty of rape, but guilty of an offence described in Section 14.

Age of consent for marriage
Under normal circumstances, a person under the age of twenty-one (21) years can consent to
marriage. But over eighteen (18) years of age in the case of a boy, and over fifteen (15) years of age
in the case of a girl, they can enter into matrimony provided that both parents are consenting.

II. Rape
Definition :
" Rape consists in a male having unlawful and intentional sexual intercourse with a female without her consent. "

According to the English Law, the emphasis has been placed on the absence of valid
consent to intercourse on the part of the female. The act consists in the penetration
of the female’s sexual organ by that of the male. The slightest penetration is
sufficient and it is immaterial whether semen is emitted or whether the female
becomes pregnant.

Rape can be committed only by a male against a female. Rape can be committed only
if the intercourse takes place without the woman’s consent. There is an arbitrary
age limit below which a girl is irrefutably presumed to be incapable of consenting
to sexual intercourse. This limit is the completion of the girl’s twelfth (12) year.
Intercourse with a girl under the age of twelve (12) is therefore rape, even if she
has consented. And it can only be committed intentionally.

III. Other forms of child sex abuse
‘Sexual offences with girls under sixteen (16) years’, Section 14 of the " Combating of Immoral Practices Act
1980 "
" (1) Any male who-
a) has or attempts to have unlawful carnal intercourse with a girl under the age of
sixteen (16) years ; or

b) commits or attempts to commit with such a girl an immoral or indecent act ;

c) solicits or enticessuch a girl to the commission of an immoral or indecent act,

-shall be guilty of an offence and liable on conviction to imprisonment for a period not exceeding
six years with or without a fine not exceeding three thousand rand in addition to such
imprisonment.

(2) It shall be a sufficient defence to any charge in terms of this section if it appears to the court -

a) that the girl at the time of the commission of the offence was a prostitute, that the
person so charged was at the said time under the age of twenty-one (21) years and
that it is the first occasion on which he is so charged ; or

b) that the person who charged was at the said time under the age of sixteen (16)
years ; and

c) that the girl or person in whose charge she was, deceived the person so charged
into believing that she was over the age of sixteen (16) years at the said time. "

The Sexual Offences Act 23 of 1957 creates a number of offences relating to sexual intercourse or
sexually indecent acts, as well as related conduct, such as keeping a brothel, procuring women for
the purposes of intercourse (procuration) and prostitution. Before 1988, the Act was known as the
Immorality Act, renamed the " Sexual Offences Act " in 1988. Some forms of conduct prohibited by
the Act were also prohibited under the common law as particular ways of committing the crime then
known as " stuprum ". It should be borne in mind that the expression " unlawful carnal
intercourse ", as employed in the Act means " carnal intercourse otherwise than between husband
and wife ".

‘Indecent assault consists in unlawfully and intentionally assaulting another with the object of committing an
indecency’

The crime can be committed by either a male or a female, and the same applies to the person against
whom the crime is committed. Just as in rape, a girl below the age of twelve (12) years is
irrefutably presumed to be incapable of consenting to an indecent assault. X must have the
intention not only to assault Y but also to assault her indecently. Attempted assault is possible.

IV. Child prostitution
Generally speaking, " procuration " is any act by which a woman (usually a young woman or girl),
is procured to become a prostitute. The procurer is usually somebody who, in a variety of possible
ways, such as persuasion, cunning, fraud, or even coercion, induces a girl to place her body at the
disposal of men (other than the procurer). The underlying reason for the prohibition of procuration
is to protect women and particularly girls (often poor and desperate to earn money), against
unscrupulous exploiters of their bodies.

Any person who " keeps " a brothel is guilty of an offence. According to the definition in the act,
" brothel " includes any house or place kept or used for purposes of prostitution or for persons to
visit for the purpose of having unlawful carnal intercourse or for any other lewd and indecent
purpose.

 

 

 

 

GENDER AND THE LAW: THE AGE OF CONSENT (part 2)

Dianne Hubbard

UNDER existing law, girls under the age of twelve and boys under the age of seven are considered to be too young to give meaningful consent to sexual intercourse. A draft rape statute proposed by the government would make the age of consent 12 for both boys and girls, provided that the perpetrator is at least three years older. This provision would be supplemented by the lesser offence of "statutory rape", which makes it illegal for males to engage in sexual activity with girls under the age of 16, regardless of consent. The previous column discussed data on when boys and girls in Namibia actually begin sexual activity and pointed to the alarmingly high incidence of forced sex among boys and girls. This column looks at other aspects of the issue.


Date: Fri, 2 Jun 2000 13:58:29 +0200

June 2, 2000 | The government of Zimbabwe reiterated its stance that
homosexuality is illegal this week when it sentenced the country's
former president to prison on charges of sodomy and sexual assault.

The 64-year-old disgraced politician -- with the unfortunate name of
Canaan Banana -- was convicted in 1999 on 11 counts, which included
the carrying out of "unnatural acts" with male members of his
presidential staff. Banana appealed the convictions, asserting they
violated privacy rights granted by Zimbabwe's constitution, but to
no avail. He is due to turn himself in to authorities for a yearlong
incarceration.

Banana became prominent in Zimbabwean politics after the country's
independence in 1980, and served as ceremonial president from that
time until 1987, alongside then Prime Minister Robert Mugabe, now
the executive president.

During that time, according to court records, Banana abused his
power to force himself sexually on male staff members. Chief
Justice Anthony Gubbay said that Banana used "his immense superiority
of status to beat down the resistance of a young and inexperienced"
police bodyguard, whose description of Banana's sexual assaults
Gubbay termed "a horrifying tale."

The judge added that the cook and gardener at Banana's official
residence were afraid that if they rebuffed his advances, they would
be arrested and killed.

According to the Associated Press, authorities arrested Banana after
a deadly shooting involving one of his conquests. A police bodyguard
snapped under the pressure of Banana's repeated sexual advances, and
shot and killed a fellow policeman who had called him "Banana's wife."
The bodyguard was sent to prison, and Banana ended up in court in
a scandalous 1998 trial that rocked the country.

Zimbabwe's government maintains a harsh view of homosexuals. Mugabe
has called them "lower than pigs and dogs." During Banana's trial,
the country's five Supreme Court judges split their opinions on the
matter. Should consensual sodomy by homosexuals continue to remain
illegal? According to Gubbay, a majority of the judges accepted Africa's
conservative attitudes toward homosexuality, and the court ruled that
the law should stand.

After a two-year trial and his sentencing, Banana still insists the
case against him was fueled by his political opponents. A Methodist
minister and former diplomat, Banana mediated in factional fighting
in the 1980s and in the Liberian civil war.

He has no plans to change his name at present.


Ten-Year Jail Term for Child Rapist
August 12, 2002

A 23-year-old Windhoek resident, Nelson Naftali Hailaula, was sentenced to 10 years' imprisonment last week after he was found guilty of raping a 10-year-old girl in the capital.  Magistrate Dinnah Usiku sentenced Hailaula in the Windhoek Regional Court last Tuesday, at the end of a trial in which she heard testimony that Hailaula had offered small amounts of money to the girl to persuade her to have sex with him.  He was charged with three counts of rape, which were allegedly committed at the Katutura Single Quarters on April 14, 15 and 16 last year.  Hailaula was convicted on only one charge of rape, though, since there was no clear evidence to show exactly when the alleged offences were committed, the Magistrate indicated in her judgement.

Magistrate Usiku further noted that it appeared from the evidence that the girl agreed to have sexual intercourse with him after he paid her small amounts of money. The girl mentioned amounts of N$10 and N$5.  But this apparent consent could not be used as a defence, the Magistrate stated, because a girl as young as the complainant in this case was, in terms of Namibian law, held to be incapable of consenting to sexual intercourse.

 

 

 

OTHER AGE MILESTONES

In general, our laws recognise the onset of different stages of maturity for the purpose of different kinds of decision-making. The legal age of consent for sexual activity should fit logically into this spectrum.

Boys and girls legally become adults at age 21. This is the age of majority for the purpose of legal acts such as signing contracts and bringing court cases independently. It is also the age at which parental authority over a child legally comes to an end. Persons must be 21 in order to be elected to public office.

The UN Convention on the Rights of the Child defines a "child" as a person under the age of 18. In terms of the Namibian Constitution, boys and girls acquire the right to vote at age 18. They are treated as juvenile offenders under the criminal law if they are under age 18. A person must be at least 18 years old to purchase alcohol legally. Boys and girls under the age of 21 need the consent of their parents in order to marry, and boys and girls under the age of 18 need the consent of the state as well.

Boys and girls are considered competent to make wills and to apply for licences for firearms at age 16. Children under the age of 16 enjoy Constitutional protection against economic exploitation and hazardous employment

The law makes an assumption that children under the age of 14 are incapable of wrongdoing. This means that a child under the age of 14 can be convicted of a crime only if the state can prove that the child knowingly intended to do wrong and understood the consequences of his or her actions. The Labour Act makes it illegal to employ a child under the age of 14 for any purpose.

No child under the age of seven can be convicted of a crime under any circumstances.

AGE OF CONSENT IN OTHER COUNTRIES

There are a number of countries with situations similar to the existing position in Namibia - a common-law age of consent for rape, supplemented by an offence of "statutory rape" with a higher age of consent.

For example, in South Africa, the age of consent in respect of the common-law crime of rape is the same as in Namibia at present - 12 for girls and seven for boys - although reform is expected in future. This position is supplemented by a Sexual Offences Act which makes it an offence for men or women to have sexual intercourse with persons of the opposite sex who are under the age of 16 years, regardless of consent. The relevant age in respect of homosexual contact between two males or two females is 19. No age gap is specified for either offence.

Similarly, in Zimbabwe, the common-law age of consent for rape is 12, but is supplemented by "statutory rape" which covers persons under the age of 16.

A different approach has been taken in Canada, which has been a world leader in rape law reform. There, the general age of consent is set at 14 for both boys and girls. However if the victim is between the ages of 12 and 14, consent can be a defence to a charge of simple sexual assault if the perpetrator is between the ages of 12 and 16, is less than two years older than the victim, and is not in a position of trust or authority towards the victim.

This narrowly-circumscribed possibility of consent as a defence does not extend to the more serious offences of sexual assault with a weapon and aggravated sexual assault. It is no defence to any of these charges that the accused believed that the other party was over the age of 14 at the time, unless the accused took all reasonable steps to discover the actual age of the complainant. There has been some recent protest about the existing legal position in Canada, and a petition arguing that the age of consent should be raised from 14 to 16 is currently being circulated.

The age of consent is 16 in most states in the United States, although this has been modified in many states by the introduction of rules about age gaps between the two parties. In many cases, the age gap between the complainant and the perpetrator determine not only whether a crime has been committed, but also the seriousness of the offence. Where there are such age gaps, they are typically 3-4 years.

For example, in New York it is an offence of first degree rape for a person of any age to have sexual intercourse with a child under the age of 11. An offence of second-degree rape is committed if the victim is under the age of 14 and the perpetrator is 18 or older, and an offence of third-degree rape is committed if the victim is under the age of 17 and the perpetrator is 21 or older.

In other states the age rules are simpler. For example, in Montana, sexual assault is committed if the victim is under 16 and the perpetrator is three or more years older.

In Australia, there are different laws on sexual offences in the different provinces but the age of consent for heterosexual intercourse is 16-17 years in most parts of the country.

POLICY ISSUES TO CONSIDER

Historically, laws on sexual offences in many countries have given greater protection to young girls than to young boys. One difficulty with attempting to extend equal protection to boys and girls is determining who is exploiting whom when there is no evidence of force or threats. For example, suppose that a law makes it illegal for any person to engage in sexual intercourse with any other person under the age of 16. In such a case, two 15-year-olds who have consensual sexual intercourse would both be guilty of a crime.

This is one reason why age gaps have been introduced. Where youth is the only factor pointing to sexual exploitation, the law assumes that the older and more mature person is taking advantage of the youth and immaturity of the other party. It would not seem to serve any useful social purpose to criminalise innocent sexual experimentation between persons who are roughly equal in age and experience. Age may not be a very precise measure of experience, but laws do use age as the basis for rules for all sorts of rights, privileges and protections -- for lack of any better options.

Another policy issue to consider is whether the law should create overlapping crimes with different degrees of seriousness. For example, consider two cases involving 13-year-old girls: one where the perpetrator is a 30-year-old man and one where he is a 15-year-old boy. Should there be different crimes to cover these two situations, or should the differences in maturity be taken into account only in respect of the sentences which are imposed?

It must be remembered that age will be irrelevant whenever force or threats are present. For example, suppose the age of consent for the crime of rape is 12 as proposed. A schoolteacher who threatens to fail a 13-year-old girl unless she sleeps with him could still be found guilty of rape. The function of the age of consent is to make it illegal to engage in sexual intercourse with a person below that age even if there are no threats and no use of force. The idea is that it is simply not possible for a child below a certain age to understand the implications of sexual intercourse, or to understand how to deal with a "request" for sexual relations.

A PROPOSAL FOR NAMIBIA

I would propose that sexual intercourse with a child under the age of 14 by a person who is at least two years older be treated as rape. This seems more consistent with the other age milestones than the proposed age of 12. For example, if the law assumes that a person below the age of 14 does not know the difference between right and wrong and is not old enough to work, surely that same child is not old enough to give meaningful consent to sexual intercourse. This also seems more consistent with the data discussed in the previous column on the ages at which girls and boys begin to engage in sexual intercourse, by taking setting the age of consent at an age slightly below the most common age for the beginning of sexual activity.

I would also propose that the crime of rape be supplemented by the lesser crime of "sexual exploitation of a minor" which would protect all boys and girls under the age of 16 from being taken advantage of by any person who is at least three years older. Such a crime should replace the existing crime of "statutory rape" in the Combating of Immoral Practices Act. It would differ from the existing provision on "statutory rape" by extending protection to young boys, and by introducing an age gap to ensure that only the behaviour of the more mature party was criminalised.

Why have two different crimes? Firstly, the new law on rape proposes stiff minimum sentences which will ensure that rape is treated with the seriousness it deserves. This makes it especially important to ensure that only situations which warrant treatment as rape are included in the definition of the crime. Secondly, the overlap between the two offences would give prosecutors and courts discretion to turn to the lesser offence in cases where this is warranted by the circumstances - such as cases where the parties fell within the required age groups but were not so actually far apart in maturity. Thirdly, the two-tier approach would reflect the fact that children between the ages of 14 and 16 are still vulnerable to exploitation, but perhaps not so easily taken advantage of as children under 14.

This proposal put forward here is similar in principle to the government's proposal. However, it suggests raising the age of consent for rape proposed by the government and narrowing the requisite age gap, in an effort to give children a greater degree of protection.

It is very difficult to decide upon appropriate ages for laws on sexual activity. Individual children reach physical and mental maturity at different ages. Different families and communities also have differing ideas about when children are old enough to make their own decisions about sex. This is why wide public debate on the question will be helpful. The proposed law on rape should be coming before Parliament this session. Consider the issue and make your own input.

August 29, 1997


March 11, l998
FROM:  (http://www.woza.co.za/forum/rightso.htm)

Where 'no' is 'yes' and husbands by definition cannot commit rape

By GUMISAI MUTUME

Durban - In Namibia, under no circumstances can a woman lay a rape charge against her husband. "Rape
in Namibia is defined as 'unlawful sexual intercourse with a woman without her consent'," notes a report by
the country's Law Reform and Development Commission.

"Looking at the legal interpretation of 'unlawful sexual intercourse' means that a woman cannot or may not
lay a charge of rape against her husband, no matter what the circumstances."

The report, prepared for a just-ended Southern Africa Development Community (SADC) conference here
on Prevention of Violence Against Women, says that rape is on the rise in Namibia, but very lenient
sentences mean that the fear of rape remains a permanent constraint on the mobility of women.

In most of the 14 SADC member states, legislation around gender violence remains weak and
unenforced, the conference heard. Even in South Africa, which has the most liberal constitution,
women's organisations are battling for specific laws and for a responsive criminal justice system.

The SADC is made up of Angola, Botswana, Democratic Republic of Congo, Lesotho, Malawi,
Mauritius, Mozambique, Namibia, Seychelles, South Africa, Swaziland, Tanzania, Zambia and Zimbabwe.

In Zimbabwe's patriarchal society, the man is the head of the family. He is expected to perform such duties as
deciding on the size of the family and bringing in other wives if the need arises, notes a report from
Zimbabwe on violence in traditional societies.

"In traditional societies, rape by a husband is not a crime, it is not even considered as rape," adds the
report. "This is because the definition of rape is not recognised. Rape is only considered as rape if the act
is perpetrated by a stranger."

Rape has been used by men across the world as an instrument to control the independence of individual
women, punish them for social unconformity and, during wars, to humiliate their adversaries.

It is against such a backdrop that a Declaration on Gender and Development, signed in Blantyre, Malawi,
in October last by SADC heads of states, commits SADC countries to put in place measures to eradicate
violence against women and children. 

But the scale of the problem remains unknown as no systematic study has been conducted across a region
where societal pressure forces women to settle problems of violence within culturally accepted
institutions such as the family.

"Generally, culture disapproves of spouses who appeal to the public authorities for protection and
redress," says Malawi's Minister of Women, Sport and Youth, Lillian Patel. "This tends to conceal and
legitimise violence."

Culturally, says Patel, "a woman's 'no' does not mean 'no' but it is a yes."

In the region, many countries follow a dual legal system: a general law inherited from colonial powers,
such as the Roman-Dutch law, and customary law. The two systems often clash, especially in their
treatment of gender-based violence. 

"Even those laws that the state may not recognise are practised in communities and are impacting on
people's lives," says Doo Aphane of Women in Law in Southern Africa.

Mauritius, with one of the region's most progressive legislation on gender violence, recently enacted a
Protection from Gender Violence Act under which a female spouse may evict her husband from the home
in the case of abuse and apply for a protection order from the state.

"We do not wait for actual violence to take place," says Mauritian Justice Minister Abdool Peero. "If
there is a likelihood that it may happen, a spouse may apply for a protection order. A spouse may terrorise
another without inflicting physical injury."

The Durban conference adopted a declaration against violence against women and proclaimed violence
against women a serious crime.

"It is important to recognise the fact that violence against women is largely a symptom of a more
fundamental malady in the fabric of society," said South African Deputy President Thabo Mbeki.

"The ultimate success of this struggle lies in the total emancipation of society as a whole and it
encompasses the empowerment of women such that they have equal say and equal access to all levers of
power."

All over the world, women's rights continue to be violated despite the existence of human rights
instruments such as the Convention on the Elimination of all forms of Discrimination Against Women
(CEDAW).

In southern Africa, women are also marginalised, especially the majority who live in rural areas.

"We have to make a special effort to integrate the efforts of the women of the region into the overall
regional agenda for the reconstruction and development of the subcontinent," said Mbeki.

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