Introduction
The term "power dynamics"
refers to the relationship one has with those in power and how their actions
are limited or influenced by those in power. Encompassed in this definition is
the balance of power and how equal those in authority are to those they are
overseeing[1]. In relation to sexual
relations of any kind, power dynamics relate to how one used their power to
sexually assault another in a lesser position[2]. These discussions came to
the fore especially during the Me-too Movement, and the arrest and later
conviction of Harvey Weinstein, a prominent American movie producer at the
time. Questions of how men use their power to harass women came to the fore. In
our own country, there have been stories of pastors using their power to abuse
women, teachers taking advantage of pupils, lecturers selling grades for sex
and employers only giving women jobs if they sleep with them. All this is in
the public discussion, with many outraged with this. But what does the law say?
This article shall look at what Zambia’s law has to say in regard to those in
power using their power to have sex, howbeit “consensual”.
The primary piece of legislation
that regulates sexually appropriate conduct is the Penal Code[3], particularly chapter 15
(XV). In section 132, rape is defined as unlawful sex with a woman or girl
without their consent or with consent, “obtained by force or by means of
threats or intimidation of any kind, or by fear of bodily harm, or by means of
false representations as to the nature of the act, or, in the case of a married
woman, by personating her husband.” Section 137 then proscribes indecent
assault with any person, which is defined in the case of Mwanza v the People[4]
as assault or battery (i.e. causing one to apprehend fear or touching them
unlawfully) that has indecency (i.e. actions which society would deem as
inappropriate) without the consent of the other individual. Section 137A then
criminalises sexual harassment and defines it as unwanted sexual advances which
disturb another person, promising to give someone an award in exchange for sex
and intimidating one into sex. Section 3 of the Anti-Gender Based Violence Act[5] also defines harassment as
any action that induces fear of imminent harm, annoyance or aggravation and
includes, among other things sexual contact without consent, unwanted sexual
advances and unwanted communications.
Now that the
legal framework has been discussed, let us look at what these provisions mean,
making reference to case law, both local and international.
Firstly, in
relation to rape, section 132 acknowledges that rape can include consent that
is gotten by force, intimidation and threats. Thus, threats, force and
intimidation invalidate consent. It is worth noting that those in power often
use threats, force and intimidation to get sex from those below them. But what
amounts to the three already mentioned? Case law gives us insight.
In the
Supreme Court judgement of the case of Mupwaya R
Chisepo v the People[6],
consent (in relation to sexual intercourse as this was a rape case) was defined
as the act of the human will agreeing to do something. The court further stated
that involved with consent is one’s ability to choose freely, without one being
subjected to duress of any form or deceit. Where consent is lacking in sexual
intercourse, that then becomes rape. In another case, Sinyolo Muchiya v the
People[7],
where the accused argued that the sex he had with the victim was consensual
because she did not scream or run away, the court stated that that is
irrelevant. Provided that the facts show that there was no consent, the act was
rape, regardless of whether the victim resisted or not. In the English case of R
v Olugboja[8],
the accused raped the victim’s friend in the room adjacent to hers. He then
went to the victim and asked her to take off her clothes, which she did. The
man then had sex with her. Before the court, the accused argued that the sex
was consensual. The court, in defining consent, noted that consent is
accompanied by submission. However, submission does not always amount to
consent, as the court noted that people sometimes submit due to pressure,
coercion, or threat. The court further stated that what determines consent is
the state of mind of the victim at the time of the encounter. For that reason,
the court convicted the accused.
The above case law shows that consent must be present
in sexual intercourse for it to be valid. This consent has to be of one’s
freewill, without any pressuring or external factors. This is crucial in
relation to power dynamics. Just because one has sex with another person in
power does not necessarily make that act lawful. If the person in power gave
threats of violence or used intimidation to get one to consent to sex, then
that amounts to rape. If for example, a lecturer threatens to fail a student if
they do not sleep with him, and that student sleeps with him, then that act
would amount to rape, even if the lecturer were to claim that it was
“consensual”.
With that discussed, we now come to indecent assault.
As already stated, for any sexual contact to be valid, there must be consent.
In relation to power dynamics, if the actions of the person in power towards an
individual are indecent and the other party does not consent to the actions,
then it shall be counted as indecent assault.
One aspect of indecent assault is sexual touching. An
informative decision is the case of R v Ewanchuk[9],
a Canadian case. In this case, the accused was interviewing a 17-year old
girl for a job she applied for. The accused tried to touch her but she refused.
He persisted in his advances until the victim gave in, having a calm demeanor.
As the touching got intense, she protested, causing the accused to cease. She
alleged that she was sexually assaulted. Before the trial court, the accused
was acquitted on the basis that the girl had implied consented to the touching
when she eventually accepted the accused’s advances. However, the Supreme Court
quashed that decision, stating that consent to any form of sexual activity,
including sexual touch, must be explicitly consensual. The one making the
contact must confirm with the other party whether they consent to the touching
or not. Thus, the accused was convicted.
Though this case is only persuasive in Zambia, it does
help broaden the understanding of what is considered as consensual in the
context of indecent assault. It is observed, especially in the power dynamic
context, that ladies that are assaulted often do immediately object to the
touching or comments they receive from those in higher positions, even though
they are not in agreement with them. Looking at how Zambian case law has defined
consent as willful agreement to an activity, it would be correct to conclude
that a superior touching or making sexual comments without the explicit consent
of the other individual amounts to indecent assault.
Lastly, we look at the provision of section 137A, as
amended by the Penal Code (Amendment) Act of 2005 and of 2011 which proscribes
sexual harassment. Sexual harassment is a prevalent matter in both learning
institutions and workplaces. According to the United Nations, young women are
more likely to face sexual harassment in the workplace than their male
counterparts[10].
In higher learning institutions, global statistics suggest that about 14.5% of
women and 6.4% of men experience forced sexual touching in higher learning
institutions[11].
As already mentioned, sexual harassment is often an act done by those in power.
Thus, it is no surprise that the aforementioned studies show that these acts
often come from people in power. With the existing legal framework, people can
report sexual harassment to the police.
In conclusion, it has been shown that Zambia has a
good framework which negates consent given to those in power. However, it is
one thing for the law to exist; it is another for it to be enforced. For the
vulnerable to be truly protected from the coercion from those in power, it is
necessary that the people are educated on what truly amounts to consent.
Furthermore, the courts of law in handling sexual offences must also take keen
consideration into the power dynamics between the parties, taking note of
global trends such as the Me-Too Movement. If all this is considered, we shall
create a just society.
[1]
‘What are Power Dynamics’ (SACAP, 2024) < https://global.sacap.edu.za/blog/communication/what-are-power-dynamics/>
accessed on 20/04/2024
[2]
‘I Ask How Power Impacts
Consent’ (National Sexual Violence Research Center, 2019) https://www.nsvrc.org/sites/default/files/publications/2019-01/Power%20Dynamics%20Handout_508.pdf
[3]
Chapter 87 of the Laws of
Zambia.
[4]
[1979] ZR 159
[5]
No. 1 of 2011, of the Laws of
Zambia
[6]
[2015] ZMSC 166
[7]
Appeal No. 139/2021 (CAZ)
[8]
[1982] QB 320
[9]
[1999] 1 SCR 330
[10]
Heike Trautmann ‘More
than 1 in 5 worldwide suffering from violence at work: ILO’ (United Nations
News, 5 December 2022) More
than 1 in 5 worldwide suffering from violence at work: ILO | UN News
accessed on 20/04/2024
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