What you need to know:
- The Kenyan law also acknowledges that consent obtained through force, threats, intimidation, or when a person is incapable of giving consent, is not valid.
- In rape cases, the crucial evidence is that of the victim, as in most cases, the only persons present when it takes place is the victim and the accused.
- The testimony of the victim regarding sexual assault is usually corroborated by medical evidence, which establishes the assault.
I went on a first date with a man I met online. The evening started well with food and drinks but ended up with me being very drunk. My date suggested we go to his place until I sober up. The next morning, I woke up, only to find us both naked. Seeing me shocked and confused, he said I had agreed to sexual intercourse while being intoxicated. I do not remember agreeing and I doubt I was able to say yes given my level of intoxication then. I feel violated; what can I do?
Anita Anyango, Kisumu
Consent is a crucial element in determining whether a sexual act was lawful. The Sexual Offences Act of Kenya provides that consent be informed, voluntary, and unequivocal. In your situation, the key issue revolves around whether you were capable of giving informed and voluntary consent given your level of intoxication.
The Kenyan law also acknowledges that consent obtained through force, threats, intimidation, or when a person is incapable of giving consent is not valid and such an offence could lead to a charge of rape or sexual assault.
In rape cases, the crucial evidence is that of the victim. This is because in most rape cases, the only persons present when the rape takes place is the victim and the accused. The testimony of the victim regarding sexual assault is usually corroborated by medical evidence, which establishes the assault.
Therefore, I advise that you get medical care as soon as possible, preferably within 72 hours of assault. It is also crucial to preserve all physical evidence. Keep the clothes you were wearing in a non-plastic bag. Report the matter to the nearest police station and afterwards contact women’s rights organisations that can offer you both legal and psychological support.
The courts have in the past addressed cases with similar facts. Most of these cases are reported during the festive season when people are in celebratory mood and often in social joints. In one of the cases, a court held that a person cannot give valid consent if they are intoxicated to the point where they are not fully aware of the nature and consequences of the act.
This implies that if your level of intoxication was such that you were unable to understand the implications of engaging in sex, any purported consent may be considered invalid. Furthermore, the Sexual Offences Act recognises the principle of affirmative consent, meaning that the absence of a clear "yes" is indicative of non-consent. If you did not remember consenting and expressed discomfort upon discovering the sexual activity, this could strengthen your case.
Remember that time is of the essence in these situations. Reporting the incident promptly and preserving evidence can significantly strengthen your case.
The writer is an advocate of the High Court of Kenya and award-winning civil society lawyer ([email protected]).