The age of consent, what the law isn’t saying
Sandra Wekesa @wekesa_sandra
It is common knowledge that sex with a minor, no matter how large or small the age gap is a crime, and comes with various levels of punishment. In Kenya, child sexual abuse is a major health concern.
The World Health Organisation defines this as the involvement of a child in sexual activity they do not fully comprehend, is unable to consent, or is not developmentally prepared for.
The discussion about age of consent arose recently when a candidate for the chief justice position, Judge Said Juma Chitembwe was interviewed by the panel and taken to task over his ruling in releasing a 24- year-old man who had had sexual relations with a 13 year-old-girl on the grounds that she was acting like an adult.
Charles Madowo, an advocate of the high court, says courts have always looked at sexual offences from the female perspective and never consider the male.
He adds that in section 8 of the Sexual Offences Act the law is very clear when it comes to explaining that someone who causes penetration with a child is guilty of an offence termed as defilement.
Ideally and legally, a minor cannot consent, but in reality, minors do have sex.
“This means you need to accept there is teen to teen sex, and this case cannot be identified as defilement because most of the time it is consensual.
With this information, you cannot go around making it an offend yet is a relationship. In our courts, they use the Romeo and Juliet laws to make a ruling of this case,” he says.
The Romeo and Juliet’s laws concern young adults or teenagers a few years apart who willingly have sexual relations.
One of the most significant protections it guarantees is that a convicted individual will not have to register as a sex offender.
“I believe judgment varies because different judges have their own beliefs and opinion on how they see things.
Therefore, as long as they refer to the law and pass a reasonable judgment in application to the law, parameters shouldn’t be different,” he says of the situation in Kenya.
For Anthony Odeck, an advocate, there should be a balance between what the law requires and the reality of today.
Rigid legislation
“The law is a bit rigid when it comes to issues to do with sexual offenses specifically defilement and rape.
In some cases, two teens both intentionally engaged in sex and actually intend on getting married or even having a lasting relationship, but since there is an age disparity then the law deems it as statutory rape, especially when the boy is older.
It’s unfair to assume immediately the boy coerced the girl yet in most situations the girl knows what she is doing,” he says.
He adds, “The court should take consideration the age difference: if it’s too far wide then the act cannot be justified, but if they are both closer to the age of majority such as 16 to 20 years old and they both profess love for each other, they should be allowed to mitigate the situation.
Punishment will still fall due to deter said teens and their peers, but they should generally be given a lighter punishment not to destroy lives of young boys because of young love or a foolish act of experimentation.”
On her part, Tessie Nyakoi, an advocate says, matters of sex education are social while defilement is legal, therefore a social aspect can’t be mixed up with a legal one.
This means, if you mix up then you might pass a judgment that might get a lot of criticism. She adds that consent shouldn’t be passed based on an appearance.
“Just because you act or behave like an adult then that doesn’t mean you are an adult. If you are an older girl or boy, it is only right to refuse any sexual act with a minor because they cannot consent to anything,” she insists.
The decision to acquit a 24-year-old, who had been sentenced for 20 years for having sex with a 13-year-old, she says, might have created a jurisprudence or paved a leeway for other defilers to escape.
Sexualisation of teens
“I don’t think there should be a blanket application of the law, in regards to defilement.
If we say in some instances you can be arrested or not, then it creates a vacuum for defilers to escape the law.
This then makes it hard for young boys and girls to be protected by the law, morals, and social norms,” she says.
She adds that it is important to keep in mind that most teenage sex isn’t reported to the police, but in an instance, it’s usually the boy who gets sent into a juvenile detention centre.
“The implications are what’s bringing issues because it sets a precedent that could potentially allow abusers escape liability for sexual intercourse with minors citing consent and ‘maturity’ of the minors,” says Nyakoi.
Stephen Atsatsa, a psychologist at Multimedia University says, while it might be hard to tell if one is a minor or an adult, it does not mean that just because they have a certain behaviour then they can consent to anything.
He highlights that following rise in teenage pregnancy, especially in the past year, it is wrong to conclude that a minor can consent to sex just because they behave like adults, or just because they dress like adults.
“I know teen to teen sex is common and this can only be dealt with if comprehensive sexual education is incorporated.
However, for the older teenagers and youth, it is only right to have a decent conversation when getting to know each other, and on accounts the person is a minor, then, in this case, let them go and talk them into going to school,” he says.
A teenager is still a child according to the law.
“Therefore, a parent, guardian, caregiver, or adult responsible of a child has a right to protect them from sexual exploitation from adults.
This then means children don’t know what they want and should not at any given opportunity be excused to consent to anything because they ‘don’t’ know,” he says in conclusion.
