Gavel

Minors cannot legally consent to sex, so it is considered statutory rape when they do.

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Why experts want law reviewed to decriminalise sex between minors

What you need to know:

  • The number of teenage boys being sent to borstal institutions because of this is on the rise with experts calling for a review of the law to decriminalise sex between two minors.
  • Last week, Justice Kanyi Kimondo said prosecuting only one child is not discriminatory.

‘The law is very clear…’ You’ve probably heard this line a million times when politicians tear into each other over this and that.

The truth is, the law is not always clear. The criminal justice system has many loopholes that often complicate cases.

The Sexual Offences Act, for instance, is silent on how judges and magistrates should treat two minors who willingly engage in sex. Minors cannot legally consent to sex, so it is considered statutory rape when they do.

Due to the lacuna, courts have maintained the position that a minor cannot consent to sex. When they do, the criminal culpability usually falls on the boy.

The number of teenage boys being sent to borstal institutions because of this is on the rise with experts calling for a review of the law to decriminalise sex between two minors.

The law was supposed to uphold justice but it has become the harbinger of injustice itself. Very many unjustly treated boys are languishing in these institutions and prisons for what was done in their teenage years – a volatile age when they experiment on their sexuality.

The law ought to have appreciated this fact, but it just gave it a blind eye. Speaking at a public hearing on the law relating to the Power of Mercy in Nyandarua County, Justice Luka Kimaru said there should be consideration on the age difference between the victim and the perceived perpetrator.

“A 25-year-old having sex with a 15-year-old is unlawful and such a person should be punished. A 16-year-old having sex with an eight-year-old is also wrong. We are referring to cases where the girl may be 14 and the boy may be 16,” he said.

“The age difference can go to a maximum of four because that is where the injustice happens.  I am happy that we are having a task force in place which is reviewing that law.”

The Act was enacted to protect children but it becomes an injustice when it punishes minors who are ‘discovering their sexualities’, offered the judge.

Though the law does not consider a minor to have capacity to give consent, he said the social reality is that “these things happen” and when it is criminalised, it creates another injustice.

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In most cases, the aspect of the perpetrator being a child is often forgotten. The Court of Appeal has also called for serious interrogation of the Act.

“A candid national conversation on this sensitive yet important issue implicating the challenges of maturing, morality, autonomy, protection of children and the need for proportionality is long overdue,” Justices Roselyne Nambuye, Daniel Musinga and Patrick Kiage stated in a ruling.

“Our prisons are teeming with young men serving lengthy sentences for having had sexual intercourse with adolescent girls whose consent has been held to be immaterial because they were under 18 years. The wisdom and justice of this unfolding tragedy calls for serious interrogation.”

They made the call while releasing Eliud Waweru, who had been jailed for 15 years by a court in Thika for allegedly defiling a 17-year-old girl.

The Appellate judges noted that in England, for instance, only sex with persons less than the age of 16 is criminalised and even then, the sentences are reasonable at a maximum of two years for children between 14 to 16 years.

Since in most cases only the boy gets arrested and subjected to the criminal justice system, the judges have been making conflicting decisions on whether the prosecution of one party is discrimination.

Last week, Justice Kanyi Kimondo said prosecuting only one child is not discriminatory.

“It matters little that the intercourse between the two minors was consensual. The truth is that none of them had legal capacity to give such consent. Secondly, the sexual intercourse with a minor is prohibited by the Sexual Offences Act,” stated the judge.

Justice Kimondo was ruling on an appeal filed by a 16-year-old boy committed to three years in a borstal institution for defiling his 14-year-old female cousin.

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The boy’s lawyer, Kirubi Mwangi, had argued that the trial violated Article 27 of the Constitution by only charging him with the offence. The lawyer argued that it was discriminatory as the two minors “had defiled each other”. He was of the view that the conviction should be set aside on that ground alone.

The lawyer relied on a judgment passed by the High Court in Busia two years ago where Justice Kiarie Waweru released a boy who had been sentenced to 20 years for allegedly defiling his age-mate.

Justice Waweru said since the two were age-mates and minors at the time of the offence, correct approach would be to find whether the sexual intercourse was consensual or force was used by the alleged perpetrator.

Discrimination

“If it is established that it was consensual, then it would be unfair to punish the boy child. The offence of defilement can be perpetrated against a boy as well.  Both children ought to be taken through counselling and in my view it would be foolhardy to punish the duo,” said the judge.

But he said the protection against discrimination under Article 27 of the Constitution is not absolute.

It is true that the complainant could also have been charged for defilement, said the judge. But the mere fact that she was not charged or that the boy child was discriminated cannot absolve the appellant of the offence.

“Criminal prosecutions are often founded upon complaints. In this case, the girl and her mother lodged the complaint. There is no evidence that the appellant or his parents did so. There are many instances where accomplices are not charged. Sometimes they may not be found; at other times they become state witnesses; or, the DPP may decide to charge some and not others,” said Justice Kimondo.

From the standpoint of criminal law, he stated, it is preposterous to say that the accused should be discharged merely because another person who may be equally liable has not been prosecuted.