Brian Masuku was convicted and sentenced to 24 months of imprisonment under section 70 of the Criminal Law Codification and Reform Act as a result of having sexual intercourse with a person younger than 16 years old. However, he was in a romantic relationship with the person and at the time the sexual intercourse took place, he was 17 years old and his girlfriend was 15 years old.
Of the 24 months imprisonment that he was sentenced to, 8 months were suspended for 5 years on the condition that Brian Masuku not be convicted of any offence of a sexual nature committed within that period. Furthermore, the remaining 16 months imprisonment was suspended on condition Brian Masuku completes 525 hours of community service at Chivaka Primary School.
The High Court of Zimbabwe determined that under the circumstances of the case, with B.M. being under the age of 18 and just 2 years older than the girl, with whom he was in a romantic relationship, a suspended 24-month sentence was excessive.
The Court listed several reasons for determining that the sentence was excessive. First, it stated that the purpose of the law is to protect children under the age of 16 from sexually transmitted diseases, unintended pregnancies, and predatory adults. The Court stated that section 70 of the Criminal Code is oriented to protect young persons from predatory adults who pray young boys and girls lack of consent. However, the prohibitions apply equally to persons aged 17 as to persons much older. The Court noted that under Section 81 of the Constitution of Zimbabwe, 17-year-olds are “children,” and that other jurisdictions exempt youthful violators from prosecution when the violator’s age is within two or three years of the victim’s age.
The Court further recognized that, according to some reports, 66% of people aged 15 to 19 engage in unprotected sex. The Court highlighted that ignoring the reality of consensual sex among teenagers and adopting an overly formalistic approach to the crime can result not only in an unnecessarily punitive sentence, but also a criminal record and stigmatization as a sex offender. It also noted that, in another case, juvenile sex offenders who committed the more serious crime of rape were not sentenced to imprisonment, such as in the case of S v. M 2009 (1) ZLR 47.
The Court recognized that the law can only go so far in protecting adolescents by discouraging sexual conduct through the criminalization of sex. The Court recognized that increasing the age that defines a young person to 18 would not only accord with the constitutional definition of a minor, but would hopefully also help to protect girls from adult predators. The Court also noted that stemming the dangers of adolescent sexuality, especially the dangers prevalent for adolescent girls requires policymakers and society at large to fashion appropriate interventions, such as ensuring access to contraception and teaching sex education.
Tsanga J., in his judgment, acknowledged the disharmony in the laws where the Constitution recognizes a 17-year-old as a child (defined as below 18), while the Criminal Code (where child is defined as below 16) treats the individual as an adult liable to prosecution under the offence of having sex with a young person.
The Court found the conviction of Brian Masuku manifestly excessive, given the overall context under which the offence occurred, such as his age and the age of his girlfriend; and the fact that they were in a relationship. The sentence was reduced to 210 hours of community service within a 16-week period.