Judge concerned about 'overcriminalisation' of teenage sex

19 November 2021 · Carmel Rickard

Many teenagers are sexually active but, in its efforts to protect children and vulnerable young people, the law is not always able to act appropriately in response. A significant new decision from the high court in Malawi raises the issue squarely and, in a section headed, ‘Overcriminalisation of factually consensual sexual intercourse’ suggests that South Africa, among others, might have found a suitable approach for the law to take. The judgment was delivered after the court reviewed the decision of a magistrate in a case where a teenage boy was charged with defilement for having had sex with a teenage girl a couple of years younger than he was. The magistrate acquitted the young man, but wrote a decision in a way that sensationalised the young woman’s sexual history and in so doing trivialised the problem faced by the courts, parents – and teenagers themselves. In her review of that decision, Judge Vikochi Chima suggested that this was not the style for judicial officers to adopt, but approved the magistrate’s finding that the young man should be acquitted.

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Malawi’s high court judge Vikochi Chima has been reconsidering a case in which Charles Gondwe, charged with ‘defiling’ a girl a couple of years his junior, was acquitted. (‘Defiling’ is the term used in Malawi for rape of a child.)

Gondwe was 18 at the time he had sex with his girlfriend, and many found it strange that the court would have concerned itself with the consenting sexual relations of two teenagers. According to the evidence of the girl’s mother, her daughter was in fact 15 at the time, but she (the daughter) told the court that she had lied to her boyfriend, telling him that she was 17.

The girl told the court that they had had sex three times at the young man’s house and that she had spent several days at his home without her own parents knowing.

Marry

Other details of her sex life also surfaced during the trial of her boyfriend, for example, that she had had other boyfriends, before the one who was charged with defilement, and that she had had sex with them too.

Gondwe gave evidence that the girl had told him she was 17 years and five months old. They had agreed to marry.

At the end of the original trial, the magistrate acquitted the young man, and that decision to acquit came before Judge Chima for review.

Illegal

In her judgment, she noted one of several factors itemised by the magistrate. He said that what helped Gondwe’s mistaken belief about his girlfriend’s age was that her parents had urged that they should get married.

As far as the courts were concerned, such a marriage, at the stage the parents proposed the idea, would have been illegal, the judge said.

Child marriages – marriages where either of the parties was under 18 – were not allowed under the law of Malawi. No one was allowed to force a ‘child’ to marry and they could face 10 years in prison if they did.

Sexualised

According to the magistrate, Gondwe, in deciding on his girlfriend’s age, also considered the fact that she had had previous boyfriends and that she had stayed over at their homes where she had had sex with them.

‘That kind of reasoning is very dangerous,’ said the judge, adding that someone’s sexual history is no basis for making conclusions about age, let alone distinguishing a child from an adult. There were many highly sexualised children as well as many adults with ‘an elaborate sexual past’, and most children in that category landed there because ‘a grown man had been sexually abusing them’.

According to statistics, one in five young women had experienced at least one incident of sexual abuse by the time they reached adulthood, and Malawi’s Penal Code aimed to protect highly sexualized children from further abuse.

Mistaken

On the subject of ‘bodily development’ and whether this was a ground for Gondwe’s mistaken view on his girlfriend’s age, the judge wrote that she believed that someone’s physical development ‘generally corresponds to their age’. She did not think it ‘far-fetched’ that sometimes a 15-year-old could be mistaken for a 17-year-old. And when the girl concerned claimed she was 17, that could fortify such a belief.

The magistrate said that he had seen the girl and believed she could pass for 17. As a reviewing court, she could not fault such an assessment unless it appeared ‘outrageous’.

For these reasons she found that the trial court was correct in accepting Gondwe’s defence and acquitting him.

Overcriminalisation

But the court had two further, important issues to deal with: the ‘overcriminalisation of factually consensual sexual intercourse’, and then some comments on judgment writing.

The first relates to whether two teenagers, having consensual sex, should be charged and tried under the law. The judge took as an example a case from Malawi in which a 17-year-old boy and his 15-year-old girlfriend had a physical relationship. They were in the same school, one class apart. Charged in the magistrates’ court, the boy pleaded guilty, was convicted and sentenced to six years. There was a subsequent appeal, and the judge hearing the appeal commented that the boy’s legal team had argued that in this relationship there had been ‘no abuse’. The judge agreed that there had been no evidence of any abuse and that this was not a case where there was a ‘power imbalance’. He thus set aside the custodial sentence and ordered an ‘absolute discharge’.

Abuse

Judge Chima also quoted researchers on the subject and concluded that lawmakers ought to revisit the law to make sure that the intention of the law – to prevent abuse of young girls by grown men – was achieved.

She then cited the law in South Africa and Canada where this aim of protecting vulnerable children was achieved by allowing, as a defence, that the accused and the complainant were close in age and where the girl was at least a certain age, with the accused no more than, say, five years older than the girl concerned.

Sober

Finally, the judge looked at the issue of judgment writing. The magistrate who originally heard the Gondwe case had used an excessively dramatic and florid style, more like a novel than a legal decision and Judge Chima obviously thought it appropriate to comment on this. While all judicial officers had their own style of writing, she said, it had to be remembered that writing judgments was a ‘solemn responsibility’ and the communication ‘needs to be sober’ regardless of the individual’s style.

Magistrates would do well ‘to avoid putting personal views, humour or sarcasm’ in their judgments, she concluded.

‘A Matter of Justice’, 16 November 2021, Legalbrief

Carmel Rickard

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