What is rape?

The law says that rape takes place when:

  1. a man

  2. forces a woman

  3. to have sex with him

  4. even after she has made it clear that she does not want to have sex with him

  5. and he knows she does not want to have sex with him or if

  6. He suspects that she does not want to have sex with him.

When a man forces a woman to have sex with him without her agreement, what is known in law as ‘consent’, he is guilty of rape. Our Constitution says that a woman is a female above 18 years of age and a man is a male above 18 years of age. However our criminal law says that at 16 years girls and boys can consent to sex.

So what is sex?

In law, when we are talking about rape, sex is when a man inserts his penis inside a woman’s vagina and penetrates her.

Is it still rape when he puts the penis in a little bit and does not go in all the way?

Yes. Simply putting a penis in a woman’s vagina without her permission is not allowed by the law. The only problem could be that it will be difficult to prove that this actually happened because it will be difficult to have evidence that something happened.

Is it still rape when he does not come (ejaculate) in her?

Yes. Some men will rape a woman then withdraw the penis from the vagina before ejaculating to avoid being caught.

Is it still rape when she says yes, they kiss, he touches her breasts, removes her clothes, even touches her vagina and then when he is about to enter her she says no?

Yes. It does not matter at what point the women changes her mind. What matters is that she changed her mind and that decision should be respected.

Is it rape when they are married?

Yes. A man can rape his own wife. This is called marital rape. Even a married woman should be able to say no when she does not feel like having sex. Forcing her is rape. Getting married does not make women men’s property. A wife is not a thing to be used and abused as and when the man wants. Sex within marriage must be an expression of love where the two agree to have sex and do so to strengthen their bond. It should not be a duty forced upon one of them.

Is it still rape if he uses a condom?

Yes. It does not matter whether the man uses a condom or makes the woman wear a condom.

Is it rape if she has an orgasm (comes)?

Yes. Sometimes the human body reacts in ways that are uncoordinated with the mind. For some rape victims, they will experience sexual pleasure while being raped and reach orgasm even though they are not in agreement with the idea of having sex with the person raping them. This often adds to the feelings of shame and the women hate themselves because they feel their bodies betrayed them. However for the man to use the fact that the woman had an orgasm as a defence does not work. He still raped her.

Is it rape when she is a sex worker (prostitute)?

Yes. Any woman can be raped whatever her profession may be. Sex work is a job, not an invitation to get raped. A sex worker has the right to decide who she wants to have sex with. If she says no, you cannot force her. Even if a man pays her afterwards, if she had said no before he had sex with her that is still rape.

Can a father rape his own daughter?

Yes. If they have sex with the daughter’s consent that is known as incest. However, if the father penetrates the daughter without her consent then that is rape.

Can a boy or man be raped?

No. The law says that only women (female persons) can be raped. If a woman has sex with a man or boy without his consent she will be charged with aggravated indecent assault but not rape. If a man forces himself on a boy that crime is sodomy.

Is it still rape when the victim asks the rapist to use a condom?

Scenario: MaNkomo was sleeping when Masendeke broke into her hut, pulled out a knife, and threatened to slit her throat unless she agreed to have sexual intercourse with him. MaNkomo pleaded with Masendeke to leave, but he refused and began to beat her up. Eventually MaNkomo, gave Masendeke a condom and said “If you are going to insist on raping me, at least use a condom.” Masendeke put on the condom and proceeded to have sex with MaNkomo. Was this rape?

Verdict:  Yes. Masendeke forced himself on MaNkomo and so he committed rape. The fact that MaNkomo requested that Masendeke use the condom is not evidence of consent. Rather it shows that MaNkomo made an effort to reduce the harm done to her having realised that fighting was useless and she would still get raped anyway.

Is it still rape when the victim goes on a date with the rapist?

Scenario: Vimbai works at ZimPost. Her boss, Fundidzani invites her to dinner. Fundidzani takes Vimbai to Victoria 22, the most expensive Restaurant in Harare. After dinner, he asks Vimbai if they can go to his office for some drinks. As soon as they get back to the office Fundidzani grabs Vimbai and forces her to have sex with him. Is this rape?

Verdict: Yes. Fundidzani forced himself on Vimbai. It does not matter that she was with him voluntarily and agreed to go back to his office.

Is it rape when the woman decides to have sex with a man to protect her interests?

Scenario: Tobaiwa is a very influential man in Harare. He controls many businesses and knows many influential people. Thandiwe, a budding fashion entrepreneur is aware of this. She also knows and has heard that Tobaiwa can be a very vindictive man. It is rumoured that the business prospects of anyone who cross him will be ruined. Rumour has it he influenced the investors in Paida’s business venture to withdraw their funds after she rejected his advances. Some people also say a warehouse of Chinese goods belonging to Tobaiwa’s mistress was burnt down in suspicious circumstances after she told him their affair was over.

Tobaiwa approaches Thandiwe and tells her he wants her. Fearing that Tobaiwa may be violent towards her and that he may destroy her business, Thandiwe agrees to go to Tobaiwa’s house where she has sex with him.

Is this rape?

Verdict: No. Tobaiwa did not rape Thandiwe. Her fear of him based on what she has heard about him (subjective fear) does not mean that he forced her.

Does the way a victim is dressed when she is raped matter?

No. It should not matter at all and it is not a defence to say you raped someone because they provoked you with their dressing. We have heard many people say when women wear clothes that are too tight or too short that it is “provocative dressing” with the possibility of driving a man to rape. This is not true. Appearance has little significance in whether a woman gets raped or not. Some women are raped wearing long skirts, others in Burkas, others in jeans or shorts or skirts of all lengths and shapes.  Rather than their physical appearance, women are raped because they are vulnerable.

 

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The Law Hub website provides legal information to give readers a general understanding of Zimbabwean Law. Its articles and social media posts do not provide legal advice and as such do not create a legal practitioner and client relationship. Examples given may not apply to all real life situations or cases. Readers are urged to consult a legal practitioner on any specific legal questions concerning a specific situation should they need legal advice.