“It is true that under the Sexual Offences Act, a child below 18 years old cannot give consent to sexual intercourse. However, where the child behaves like an adult and willingly sneaks into men’s houses for purposes of having sex, the court ought to treat such a child as a grown-up who knows what she is doing.” These are Justice S. Chitembwe sentiments in the case of Martin Charo v Republic 2016 eKLR.
This case has highlighted/ taken into consideration the very need to amend the Sexual Offences Act. particularly with regards to defilement under Section 8 of the Act. It defined as committing an act which causes penetration with a child. In other words, having sex with a child. Under the Children Act, a child is defined as an individual who is below the age of eighteen years. The penalties for defilement vary with the child’s age. The Sexual Offences Act then sets defenses under section 8(5): they include if the child deceived the accused as to her age and the accused reasonably believed that the child was over the age of eighteen years. Further under section 8(6), the belief referred above can be determined taking into consideration all circumstances including the steps taken by the accused person to ascertain the age of the complainant. Lastly the defenses do not apply to persons who share blood affinity for instance, relatives.
Factors to be considered to establish existence of defilement.
In order to establish that a child was actually defiled, particular circumstances (highlighted in Charo v Republic) have to be ascertained. They include:
- Did the accused report the defilement immediately after the incident;
- Whether the accused was threatened after the incident;
- The time it took for the girl to report the incident;
- Whether there was threat to her life;
- Duration of the relationship and
- Whether the parents are aware of the relationship.
However, the case of Martin Charo has highlighted the need to amend the Sexual Offences Act to take into consideration the change in circumstances.
The willingness of children to engage in Sexual activities
Firstly, what happens if the complainant willingly engaged in sexual activities? Some young children may willingly engage in sexual activities. It is not appropriate to sentence the accused person in spite of engaging in sexual activities with a minor. In the case, the child willingly took herself to the accused house to engage in sexual activities. Moreover, in the case of P O O (A Minor) v Director of Public Prosecutions & another 2017 eKLR, the judge observed that it was outrageous to vilify the boy when the girl willingly engaged in sexual activities. In this case, he observed that “…This kind of scenario has bothered my mind ever since the harsh penalties in the Sexual Offences Act came into operation. These are both minors in their teens when hormones are raging madly. They decide to experiment on their prowess mutually-then lo and behold the girl gets pregnant and an enraged parent reports to the police, who in turn arrest the boy.” This brings in the element of discrimination as both children willingly engaged in sex only for the boy to be arrested.
The debate about the discriminatory effect of section 8
Whether the section 8 of the Act is discriminatory is debatable. The Constitution of Kenya 2010 under Article 27 provides that every person is equal before the law and has the right to equal protection and equal benefit of the law. Article 27 obligates the state not to discriminate directly or indirectly against any person on among other grounds…including sex. This position has been subject to litigation where some fractions argue that section 8 is not discriminatory. In the case of CKW v Attorney General & another  eKLR at Para.88 the learned judge observed that, “In Kenya the law does not distinguish between the girl and the boy, in section 8 of the Sexual Offences Act. In effect, the law as enacted does not discriminate…it is a matter of evidence…the discriminatory application of a law if it is established is wrong. But such a conduct by the person who exercises it does not render the law itself discriminatory.” In this instance the learned judge was of the opinion that the law does not provide for the discrimination aspect as the discretion to charge the accused person lies with the prosecution. However, in G.O. v Republic 2017 eKLR, the learned judge was of the opinion that that the appellant was discriminated against on the basis of sex in that he was arrested and charged instead of the prosecution charging both the complainant and the appellant for the offence of defilement. He observed that both were minors. However blame ought to have been apportioned against both parties as in this particular case the complainant was older than the accused. He observed that both minors need protection against harmful sexual activities and none should be sent to prison.
From the above suppositions, it is clear that the Sexual Offences Act needs to be amended. It is very unfair to whole heatedly apportion the blame on the boy child where the girl willingly engaged in sexual relations. The House of Lords observed that, “as sexual touching is usually a mutual activity, both the children involved might in theory be prosecuted…the person penetrated may be the offender… Obviously there will be wide variations in the blameworthiness of the behavior… Both prosecutors and the sentencers will have to make careful judgments about who should be prosecuted and what punishment, if any, is appropriate.” This opinion highlights the need to deviate from the usual presumption that the penetrator is the guilty one. The office of the Director of Public Prosecutions in performing its functions is to be guided by the principles enumerated under section 4 of the ODPP Act which provides that in fulfilling its functions, the office shall be guided by the Constitution and among other principles the principles of impartiality and gender equity. This means that gender equity should be respected when prosecuting offenders when it comes to sexual offences.
Can children consent to sexual activity?
Concomitantly, children have been held as being unable to give consent to sexual relations (Bonu v Republic 2010 eKLR). Consent has been defined as to agree voluntarily and it supposes a physical power to act, a moral power to acting and a serious determined and free use of these powers. Children have been categorized as persons who are unable to appreciate the nature of the act. Section 43 qualifies this by using the words: incapable of appreciating the nature of the act which causes the harm.’ And under subsection 4, children are categorized as such persons. However, most children nowadays are able to understand what constitutes sex and are now engaging in it freely. Children are being able to appreciate the nature of the Act. The judge in the case of Charo v R noted that “…Where the same child under 18 years who is protected by the law opts to go into men’s houses for sex and then goes home, why should the Court conclude that such a person was defiled… In my view that cannot be defilement…” from this we can conclude that a person should not be charged for defilement if the minor understood the nature of the activity taking place and whose consent was obtained without any fraud or undue influence. The law strictly provides that a minor cannot consent to sex, however, due to the change in circumstances, minors are been able to understand what is going on. Statistics, show that in Kenya one in five youths aged 15-24 years reported sexual debut before the age of 15 years. In addition, a survey done by GuttMacher indicates that among the surveyed students who are between the age of 15-17, 42% of the males have had Sex and 15 % of the females have had sex. These statistics are not in vain. They indicate that actually most of the teenagers are sexually active and understand the nature of the activities that they are engaging in. So, why vindicate someone for engaging in an activity on which they understand. The judge noted that in instances where ‘both children have defiled themselves’ these are children who need guidance and counselling rather than criminal penal sanctions. It is up to the parents and the society to appreciate the change in circumstances and ensure they educate their children on matters related to sex.
Defilement being used for extortion purposes.
Defilement has been termed as a mechanism used by the victim’s parents to seek finances from the accused person. This happens when the complaint’s parents become aware of the existence of the relationship. Since they do not want to believe that their child is being involved in sexual conduct, they accost the accused person’s parents to pay for ‘violation of their daughter’ or else they will sue. Such a suit tends to lower the reputation of the accused persons parents. In addition, the punishment imposed when an accused person is adjudged guilty is severe. Distraught parents, often afraid of such consequences, succumb to the demands of the victim’s parents and pay the fee. To make the matters worse, the girl is never allowed to see the boy again and bad blood between the two families is born.
Changes by other countries.
Other countries in the world are changing their laws to address this changing circumstances. For example in France is planning to set the age of sexual consent to fifteen years. Other Countries in Europe have different ages of sexual consent for example 14 years old in Austria, Germany, Hungary, Italy and Portugal; 15 for Greece, Poland and Sweden; 16 Belgium, Netherlands, Spain and Russia and 17 in Cyprus. In the United Kingdom, the age of sexual consent is sixteen but children under the age of 13 years have additional legal protections that declare that they can never consent to sexual activity. More so, if 16 year old’s can vote in countries such as Brazil, Argentina, Ecuador, it means that these so called children are able to appreciate what is right and wrong and are mature enough to make decisions.This means that this particular countries have been able to appreciate the change in circumstances and the laws have been amended to reflect just that. Kenya should therefore follow suit.
This article does not intend to glorify defilement.
In conclusion, first this article is not intended to glorify or seek the legalization of defilement. Defilement violates the dignity of those children who go through such an ordeal. For example the Sunday Nation relying on data from Transform Empowerment for Action, noted that at least 1208 children had been defiled in the lakeside county in the last 15 Months alone. This means that defilement is still rampant in Kenya despite the laws. Nevertheless, Charo v R highlights the different challenges that may be posed by the strict interpretation and application of the Sexual Offences Act. Adjudging the accused person guilty without taking into account specific circumstances maybe prejudicial to him.