The Sexual Offenses Bill 2000: Some comments by GALZ

by lawyer Derek Matyseck
GALZ has grave reservations in regard to sections 15 and 16 of the Sexual Offences Bill 2000. The Bill is generally commendable in several regards, particularly in that it renders several offences which were previously sex specific, such as 'Statutory Rape' and rape (see sections 3 and 8 of the Bill) sex-neutral. Section 8 for example will have the effect of legislating that non-consensual sodomy should carry the same penalties as rape regardless of the sex of the person raped. In addition, non-consensual penetration of any orifice with the male organ will attract the same penalties of rape, as will penetration of the genitalia or anus with an object another than the male organ. These are progressive changes. The Billís intention to protect young persons is also noted, and while the appropriate age of consent may be debatable, the intention is commendable.

However, GALZ takes great exception to two main aspects of the Bill.

FIRSTLY, while consolidating sexual offences, this is an appropriate moment to decriminalise sexual acts performed by consenting male adults in private. This does not even appear to have been a subject for debate. The Human Rights Commission has made it abundantly clear that the criminalisation of homosexual acts by consenting males in private constitutes discrimination in violation of the International Covenant on Civil and Political Rights. The Human Rights Commission has stated this emphatically in the Judgement of Toonen v Australia Communication No 488/1992. Numerous judgments from the European Court of Human Rights, interpreting similar clauses in the European Convention for the Protection of Human Rights and Fundamental Freedom, have found likewise.

In terms of article 2 of the International Covenant on Civil and Political rights, Zimbabwe is obliged, as a state party which has ratified and acceded to the Covenant in 1991, to bring its laws into line with the rights in that Convent. The failure to decriminalise same-sex sex between consenting male adults is thus a blatant violation of Zimbabweís international obligation in this regard. When Zimbabwe presented its obligatory report to the United Nations Human Rights Committee in New York on 25th and 26th March 1998 Zimbabwe was sharply criticised on two grounds relevant to this Bill:

for its failure to provide an enabling mechanism to ensure that new legislation presented to and passed by parliament was not in violation of the Covenant; and

for seeking to suggest that it could avoid its obligation to bring its laws into line with the Rights in the Covenant on the basis of ìcultural relativityî.

The legislation arrogantly ignores these objections raised by the Committee.

Secondly, and perhaps more importantly, not only does the Bill fail in regard to decriminalisation, it in fact, and perhaps unintentionally, it renders the current proscriptions on adult male same-sex sex more draconian.

One of the general intentions of the Bill is to increase the penalties for non-consensual sex which previously did not fall within the legal definition of rape, such as anal rape and, quite properly, to make the penalty commensurate with rape (section 8). The Bill is largely and rightly concerned with the absence of consent, regardless of the nature of the sexual assault. It thus has several provisions relating to those instances where a person is deemed incapable of consent, on the basis of age, mental disability etc. However, because of the continued failure of the law to separate consensual sodomy from non-consensual (both very different acts being charged in the court as the same common law offence of ìsodomyî) consensual sodomy has been caught in the net intended by the Bill to increase penalties for non-consensual acts. The offending provisions in this regard which are most obvious and inequitable are sections 15 and 16.

The declared intention of section 15 of the Bill, according to page (ii) of the Memorandum to the Bill, is to:

Provide for a prison sentence of up to 20 years for anyone who is convicted of rape, sodomy or a contravention of clause 3, 4 or 8(1)(a) or (c) if he was infected with the HIV virus at the time of the offence.

Hence section 15 deals with the following offences:

* rape - i.e.non-consensual penile penetration of the vagina, a common law offence;

* sex with persons too young to be deemed legally capable of consent (a section 3 offence);

* sex with person considered too intellectually handicapped to be capable of consent (a section 4 offence);

* non-consensual penetration of any part of any persons body, male or female, by the male organ (a section 8(1)(a) offence);

* non-consensual fellatio or cunnilingus (a section 8(1)(c) offence; sodomy, a common law offence.

All the offences relate to non-consensual acts. Sodomy can likewise refer to a non-consensual act. It thus seems that the actual intention of the draftsperson was for section 15 to cover non-consensual acts. Unfortunately, because consensual sodomy is charged under the same rubric or given the same name as non-consensual sodomy, consensual sodomy has been caught in the net of section 15.

The results of this are very serious for the male gay community. Effectively, if an HIV positive man is charged with and found guilty of sodomy, he may be given a sentence of up to 20 years imprisonment. While this may be justifiable in the case of non-consensual sodomy, i.e. homosexual rape by an HIV positive man (though the provision of a 20 year sentence for an HIV positive man can be only symbolic given his prospective life span), it is not justifiable in the case of consensual sodomy. Yet the effect of section 15, by virtue of the failure to distinguish between consensual and non consensual sodomy, is that an HIV positive person engaging in consensual sodomy with his life long partner, who has taken all appropriate precautions to prevent the transmission of the virus, and who has informed his partner of his condition, is liable to up to 20 years imprisonment. This is inhuman and degrading punishment far exceeding the gravity of what should not, in terms of international norms, even constitute an offence. The present penalty for such an act is a Z$500 fine (S v Roffey 1991(2)ZLR 47 and S v Banana S.C. 41/2000)

I do not believe it was the intention of the draftsperson to increase the penalty for consensual sodomy by an adult HIV positive person with another, when the other is fully aware of the condition and appropriate steps have been taken, from a Z$500 fine to 20 years imprisonment.

This has occurred unwittingly through the failure to distinguish between consensual and non-consensual sodomy, a long standing criticism of the law by GALZ which the Bill fails to address.

The simple remedy is as follows:

Section 15 is clearly intended to deal with non-consensual acts. Section 8(1)(a) is included in the ambit of section 15. 8(1)(a) makes it an offence for any person who, without the consent of the other person concerned, with the male organ, penetrates any part of the other persons body. This would cover an instance of non-consensual sodomy.

Non-consensual sodomy is thus clearly covered in section 15 by reference to this provision - 8(1)(a). There is therefore no need to include sodomy in section 15. This is repetition and has the effect of drawing consensual sodomy into section 15. It is also repetition to include rape which is likewise covered by section 8(1)(a).

The problem with section 16 is identical. Section 16 provides for compulsory HIV testing for those convicted of sexual offences. All the sexual offences concerned are either non-consensual sexual acts or the deliberate infection of another with the HIV virus...with one exception, the offence of sodomy. Again no distinction is made between consensual and non-consensual sodomy. The effect is that a person convicted of sodomy and fined $500, notwithstanding the fact that the sodomy was consensual, notwithstanding that appropriate precautions may have been taken to prevent HIV infection, may be subjected to the further indignity of compulsory testing.

The remedy to this injustice is the same - the removal of 'sodomy' from the clause will exclude consensual sodomy from the ambit of section 16 but not non-consensual sodomy, which is covered by reference to 8(1)(a).

Reply to some possible objections:

It may be suggested that it is necessary to keep 'sodomy' in section 15 since where an HIV positive man engages in sodomy with another man, the sentence should be higher than the present $500 fine as he risks infecting his partner with HIV, even if the sodomy was consensual. The response is that this situation is dealt with in section 14, dealing with deliberate infection of HIV.

It may also be argued that the police leave those engaging in consensual sodomy alone, that there are very few prosecutions for consensual sodomy, so there is no need for either decriminalisation or the removal of sodomy from section 15. It is true that there are very few prosecutions for consensual sodomy. However, the law itself is dehumanising, reducing gay men who engage in comsensual sodomy to the status of 'unapprehended felons'. Furthermore, while the police to not use the legal consequences of criminalisation to the full, they certainly use the extra-legal ones. This manifests itself in the endemic problem of blackmail. Several other jurisdictions debating the decriminalisation of consensual same-sex sex between adults have noted that criminalisation is tantamount to a blackmailer's charter.

Far from the law preventing persons from engaging in same sex activity it motivates some unscrupulous persons to engage in homosexual acts in which they might not otherwise engage, precisely for the purpose of blackmailing the person with whom they have had sex. Numerous instances of this have come to the attention of lawyers acting for the gay community. Attempts by the victim to report the matter to the police have on several instances resulted in the police officer himself threatening to arrest the victim for sodomy unless money is paid to him. This is often regardless of whether sodomy has taken place or not, and is often merely an attempt to exploit the knowledge that the victim is gay. Several instances of unscrupulous police officers and persons posing as the same, threatening to arrest homosexual men on fictitious charges of sodomy have arisen this year alone. The extortioners have only retreated once lawyers have become involved. The criminalisation of consensual male to male sex in private does not stop this activity. It simply fosters another crime, that of extortion, engaged in as frequently by police officers as others. Because consensual sodomy is a crime and because of the behaviour of the police themselves, this crime of extortion goes largely unreported. In the instances where it has been reported and the victim has refused to yield to extortion threats by the police, the victim has been arrested. Criminalisation fosters extortion and corruption without changing the behaviour it purports to criminalise. The law is unnecessary.

Arguments that criminalisation of consensual sodomy is necessary to protect minors are untenable. They can be protected in the same way as they are in respect of heterosexual contact as per section 3. Even the Herald has conceded that what gay men do in private is their business. Its accompanying claim that if gay men keep a low profile they are left alone is not however borne out by the facts.

The stakes for gay men have now been increased. By raising the specter of a higher penalty for consensual sodomy, extortioners will increase their demands. Faced with this prospect and the prospect of compulsory testing, the difficulties of resisting the extortioners' demands are compounded. It is almost as if the legislature is seeking to place a stamp of approval on this blackmailer's charter. GALZ thus urges the legislators to amend the Bill accordingly.