• Children lack the legal capacity to give consent, sex with them is deemed defilement
• Boys are often targeted when teens have sex, but what if both lovers are minors?
When I first went to court for a court visit, I recall this incident where a young man, about 19 years of age, was brought before court to answer to defilement charges.
When asked whether or not he committed the offence, his response was, “Huyu ni bibi yangu.” (This is my wife). Unaware of what to do, the court assistant re-read the charges, and the accused person regurgitated his remarks.
It sometimes seems obvious that children are out of bounds in so far as sexual escapades are concerned, but some interesting scenarios we witness disprove the notion that it is obvious. The Sexual Offences Act regards any act of sexual intercourse involving a minor as defilement. It matters not whether the child was convinced by an adult into the act or whether the child was the one soliciting. The law regards children as incapable of granting consent.
To be clear, under the Kenyan legal regime, any person under the age of 18 years is regarded as a child. It matters not how mature they may appear, the age is what is regarded. It is also worth noting that women may also be charged with defilement if they have sexual intercourse with boys under the age of 18. Though this rarely occurs, it is very possible.
The Sexual Offences Act came into force at a time when many young girls were being taken advantage of by men and sexually abused. Even by the wording of the Act, one can tell it assumes that the man is the perpetrator and the girl is the victim. However, the Constitution of Kenya 2010 introduced an interpretation of the law that heeds its principles. In this case, the interpretation must not perpetuate gender-based discrimination against male children by assuming they cannot be defiled.
There are two major sources of friction in present-day Kenyan society regarding the law on defilement. First is the issue of child marriages. In many African communities, girls were married off from as young as the ages of 12 to 14 years. In areas where such customs remain prevalent, many come into conflict with the law.
But the greater challenge is with teenagers who consensually engage in sexual intercourse and fully appreciate the nature of their actions. This has particularly been an issue where both parties are minors. For long, the male child would be held criminally liable, whereas the female child would go scot-free.
In recent times, however, this way of dispensing such cases has been criticised as discriminatory against the boy child. As such, the courts have leaned towards exercising restraint in sentencing minors in instances where a minor was sexually engaged with another minor.
The penalty for defilement varies depending on the child’s age. If the child is 11 years or less, a person convicted will be sentenced to life imprisonment. If the child’s age ranges from 12 to 15, the sentence is a minimum of 20 years. And if the child is 16 or 17 years, a minimum of 15 years.
It is a defence to the charge of defilement if the child deceives the accused about their age or the accused reasonably believes the child was over the age of 18, provided such a person takes steps to ascertain the child’s age. But that the child gave consent can never be a defence.