CONTROVERSIAL social media influencer Taona Shadaya has recently thrust himself into public debate after claiming that young women should preserve their virginity before marriage and advising men not to marry women who have previously been sexually active.
His assertion that any woman who engages in premarital sex is “damaged goods” or diminished in value is not only outdated and discriminatory, but also deeply harmful.
Yet, ironically, some of the sentiments he echoes are rooted in the archaic law of seduction still recognised in Zimbabwean jurisprudence.
Under both general and customary law, seduction is recognised as a delict (civil wrong) committed when a man induces an unmarried woman, traditionally assumed to be a virgin, to have consensual sexual intercourse with him.
It is essential to emphasise that the act must be consensual; if force is involved, the matter squarely falls within the ambit of rape, a criminal offence.
To appreciate the complexity of this topic, one must understand what constitutes a delict.
According to legal scholar Geoff Feltoe, the law of delict addresses civil wrongs, unlawful and blameworthy acts or omissions that cause harm to a person or their property and give rise to a claim for damages. Within this framework, seduction is treated as a wrong for which damages may be sought.
Under general law, a woman may claim damages for loss of virginity and the alleged impairment of her marriage prospects. If a child is born from the relationship, she may also claim lying-in expenses and maintenance.
- Divine Insights: Love beyond lust, sex, and the church
- Outdated seduction law undermines gender equality
Keep Reading
However, customary law historically treated the wrong differently. Under traditional norms, the woman did not claim damages; her father or guardian did.
As Welshman Ncube once explained, seduction under customary law is defined as consensual intercourse with a woman without her guardian’s approval.
The delict is committed not against the woman but against her guardian, effectively reducing the woman to a conduit rather than a rights-bearing individual. Customary law, in this sense, did not recognise her personal right to claim damages.
This position was transformed by the landmark Supreme Court judgment in Katekwe v Muchabaiwa (1984). The court held that since women were now legally recognised as adults capable of contracting in their own right, fathers could no longer sue for seduction on behalf of their adult daughters.
Instead, the right to sue now vested in the woman herself. If she was a minor, the guardian retained the right to claim.
Although this ruling was later limited in scope by the controversial Magaya v Magaya judgment, Katekwe nonetheless marked an important shift toward recognising women’s agency.
Under general law, the delictual act of seduction requires three conditions:
Sexual intercourse took place;
The woman was “seduced” into the act;
She was a virgin up to that point.
Yet the reality is that proving virginity, an unscientific and highly-contested concept, is practically impossible.
Courts, therefore, presume the second and third elements once sexual intercourse is admitted, placing the burden on the man to prove that the woman was not a virgin. This presumption rests on outdated beliefs about women’s sexual purity and marriageability.
In simple terms, the law currently allows a woman who engaged in consensual premarital sex to claim financial damages, ostensibly because her marriage prospects have been impaired.
This legal logic reinforces the problematic assumption that a woman’s social value diminishes with sexual experience. Such a notion has no place in modern Zimbabwe, where gender equality is constitutionally protected.
In my considered view, the law of seduction raises serious constitutional concerns. It appears to punish one gender while positioning the other as lacking agency, judgment or responsibility.
Section 56 of the Constitution is unequivocal: All persons are equal before the law and must not be unfairly discriminated against based on sex, gender, marital status or culture, among other grounds.
A law that allows only women to claim seduction damages, while denying men similar recourse, risks infringing on these equality guarantees.
I concur with scholar Priccilar Vengesai, who argues that the delict of seduction infantilises women by presuming they lack the capacity to make informed decisions about their sexuality.
As she notes in Dilemma of Gender Inequality in the Delict of Seduction, women today occupy high offices, manage corporations, lead institutions and exercise autonomy in every sphere, including their sexual lives.
To assume they are easily “seduced” merely because they are unmarried is both patronising and incompatible with contemporary gender realities.
Where I depart from Vengesai is in my view that the law, rather than bolstering patriarchy, can enable the manipulation of intimate relationships.
It creates a legal avenue through which one partner may sue another for consensual intimacy that did not culminate in marriage, an outcome neither party is obligated to pursue.
Such a power imbalance can unfairly weaponise relationships and undermine mutual trust.
If divorce is permitted and if divorced persons, women included, can remarry, then it is unreasonable to expect that every consensual sexual relationship will end in marriage.
Penalising one party based solely on gender is neither just nor constitutional.
As it stands, the law of seduction perpetuates outdated assumptions about women’s value, reinforces stereotypes linking a woman’s worth to her sexual history and denies both parties equal protection of the law.
For a society committed to equality and dignity, it is imperative to reform this area of law to reflect modern values, scientific understanding, and constitutional principles.
A fair legal system must treat both men and women as autonomous individuals capable of making informed choices about their relationships and sexuality.
Only through such reforms can Zimbabwe move toward a more just and gender-balanced legal framework.
Mhlanga is a law student at the University of Zimbabwe.
