The Disability Observer 2019 Issue 2
IGNORANTIA JURIS NON EXCUSAT
By Michelle Mutogo
Ignorance of law is no excuse is a legal principle holding that a person who is unaware of a law may not escape liability for violating that law merely because one was unaware of its content.
This means that if ignorance were an excuse, a person charged with criminal offenses or a subject of a civil lawsuit would simply claim that one was unaware of the law in question to avoid liability, even if that person really does know what the law in question is. The law therefore imputes knowledge of all laws to all persons within the jurisdiction no matter how brief.
In the cases that have been monitored by the Disability Rights Law Center, it has been noted that in the rural areas cases involving rape of minors, the perpetrators render ignorance of the crime committed citing that they would have had consent, without taking into consideration the fact that the victim was underage and had no capacity to consent.
Criminal Law (Codification and Reform)
Act [Chapter 9:23] section 65 defines rape
as:
If a male person knowingly has sexual intercourse or anal sexual intercourse with a female person and, at the time of the intercourse
(a) the female person has not consented to it; and
(b) he knows that she has not con sented to it or realises that there is a real risk or possibili ty that she may not have con sented to it.
Section 70(2) goes on to say that It shall be no defense to a charge of sexual intercourse or performing an indecent act with a young person to prove that he or she consented to such sexual intercourse or indecent act. This section criminalizes sexual intercourse with a minor, regardless of the presence of consent or not (statutory rape).
Most people lack awareness on this, especially in the rural areas and believe that when there is consent by the minor, it is acceptable to have sexual intercourse with her. This is why the prevalence of child marriages is high with 32% of girls in Zimbabwe being married before the age of 18years and 4% are married before their 15th Birthday in these areas.
A lot of people will then argue that they were unaware of the existence of the concept of statutory rape claiming it is alien to them. So many people have been charged with statutory rape, due to the fact that they were unaware of this, whilst others have gotten away with child marriages especially in rural areas.
Inside this issue
- Aligning Zimbabwe Disability Laws with the UNCRPD.
- When language becomes a barrier to Justice.