Consider decriminalising adolescent sex

The proliferation of mobile phones and access to affordable or free internet in Kenya has encouraged the use of electronic communication devices, which has promoted sexual activity among pre-adults. They have become sexually promiscuous in terms of “sexting”, access to pornography and rapidly increased knowledge on contraceptives.

NON-PUNITIVE

Of late, the country has seen a high prevalence of teenage pregnancy, as many as 13,000 a year, the “Kenya Demographic & Health Survey” (KDHS) report shows. Kilifi County alone saw 100 pregnant schoolgirls sit the latest KCSE.

During the long holidays, particularly, teenagers have unlimited and unsupervised free time. Other than the usual tinkering with electronics and engaging in counterproductive behaviours such as dabbling in drug and alcohol abuse, they quench their curiosity with experimental sex. This has got many minors on the wrong side of the law, prosecuted on sexual offences.

There are two major policy positions: Punitive and non-punitive approaches. Most countries, including Kenya, have adopted the former. However, legislation does not explicitly criminalise consensual sexual conduct between adolescents. That leaves a grey area that is often filled by social and cultural norms that perceive adolescent sexual conduct negatively.

Judges and magistrates find themselves in a legal dilemma in regard to this issue and some cases result in contradictory verdicts. In one, a minor was charged with sexual offence for engaging in consensual sex with another but, given that both were under 15, the court released them. In contrast, for those over 15 but under 18, prosecutors often press sexual offence charges on the boy, but not the girl, who is set free.

SEX EDUCATION

But a Zimbabwean High Court reversed the conviction of a 17-year-old boy who had consensual intercourse with his girlfriend, 15, but was charged with defiling a minor.

Punitive approaches are often justified as necessary to curb harm to adolescents resulting from sexual conduct, including teenage pregnancies and sexual abuse. Criminalisation of adolescent consensual sexual conduct in age of consent laws has arisen in several courts.

The fundamental question, then, becomes what ought to be done when two adolescents engage in consensual sex?

It’s time we had a candid and honest conversation on whether to revise the age of consent downwards or decriminalise consensual sex between adolescents. We need programmes such as comprehensive and age-appropriate sex education, made available at as early as six years.

Jailing the teenage male ‘offender’ is an affront to his rights and discriminatory. In 1996, Kenya introduced a school re-entry policy to ensure all pregnant girls resumed school soon after weaning their babies. There is no reason why consensual sex among adolescents is not decriminalised as the rights of both teenagers would be upheld.

Mr Daniel is an economics and policy analysis lecturer, Karatina University. [email protected]