The Sexual Offences Act No 6 of 2006 Kenya, in recent times, has been challenged in courts of law with respect to criminalizing consenting sexual relations between minors. Section 8 (1) of the Sexual Offences Act provides that a person who commits an act which causes penetration with a child is guilty of an offence termed defilement. Section 11 (1) of the Sexual Offences Act provides the penalty. However, there no express or implied reference that the person envisaged in this section is an adult or a minor.

Flowing from this is whether the said sections of the Sexual Offences Act are discriminating and inconsistent with the rights of children under the Constitution of Kenya where the impugned sexual activity between the minors was consensual. The answer is NO. It is imperative to note that Section 8 of the Sexual Offences Act does not distinguish between a girl and a boy. It unmistakably mentions “a person” and not a boy or girl. In essence therefore, the law is not biased rather its application is what may be discriminatory.

Interestingly, under the Kenyan law, there is no mandatory requirement that both minors involved in consensual sexual acts of penetration with each other, should be charged with the offence of defilement. Perfectly put, there is no legal bar to the prosecution charging both minors where the prosecution has reasonable cause to charge both of them.

In our criminal justice system, criminal process commences by a formal complaint. In this instance the point of concern is who lodges the complaint for statutory rape? On the face of it, it is most unlikely that either of minors would lodge a complaint against the other, in respect to an act that they had consented to. Nonetheless, when a minor is charged with defilement, often times, it is the male child, even when it is clear that the girl child was a willing participant in the sexual acts. The boy child is christened an abuser and defiler under the law. This amounts to stigmatization and degradation of the minor. The whole criminal process the minor is exposed to is traumatizing; the girl is often viewed as a victim and used as a witness against the boy.

In the case of POO (a minor) v. Director of Public Prosecutions & Another [2017] eKLR, the complainant testified that she knew the petitioner as they attended the same Church and they would spend a long time talking.  He requested her to go to his home and she obliged.  They removed their clothes and had sex. Omondi J then observed that these are minors both 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 then arrest the boy. He found that the boy was discriminated against on the basis of sex in that he was charged alone but in reality both the boy and girl needed protection against sexual activities.

In South Africa, section 15 of their Sexual Offences Act was equally challenged in the case of Teddy Bear Clinic for Abused Children & Another v. Minister of Justice and Constitutional Development and Another (cct 12/13) [2013] zacc 35.  The said section criminalized consensual sexual penetration with a child. The court held that it cannot be doubted that the criminalization of consensual sexual conduct is a form of stigmatization which is degrading and invasive. The judges observed that if a prosecution is instituted for a charge of Statutory Rape, both children involved must be prosecuted.

It follows that the disproportionate prosecution of the male child in incidences where both minors freely and willfully engaged in consensual sexual activities is a prima facie blatant violation of the rights of the male child, who is also entitled to equal protection and benefit of the law and further amounts to indirect discrimination against the male child espoused under Article 27 (5) of the Constitution of Kenya, 2010. 

The upshot of the foregoing is that there is urgent need to rethink statutory rape in relation to the Kenyan child, more so in furtherance of equality. We need to consider other more appropriate and suitable measures in dealing with minors engaging in consensual sexual acts, without having to resort to criminal   proceedings.

Minors found in consenting sexual relations should be treated as children in need of care, guidance and protection. They not only need protection against sexual predators but should also be protected from engaging in premature sexual relations. This is because when minors, especially adolescents, are given freedom without direction, they tend to engage in more risky behavior. The objective should be to live up to the United Nations Convention on the Rights of the Child, to attain millennial goals of eradication of teenage pregnancies, HIV/AIDS and school drop-out rates.

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