REFORMING THE LAW ON DEFILEMENT: A REPLY TO MR. BRADEPT JOSEPH
Author: Chweya Nyamari
ABSTRACT
Section 8 of the Kenyan Sexual offences Act No. 5 of 2006 (hereinafter referred to as the Act) was meant to protect children against sexual predators. It is however evident that it did not address instances where children engage in sexual relations amongst themselves. Mr. Bradept through his Article posted on JKUAT Law Review rendered his notion on this controversial topic. This article entails a reply to Mr. Bradept’s school of thought and endeavors to disapprove consensual sexual relationships between adolescents. The article culminates in proposing an amendment to the sentences associated with instances where minors defile themselves.
INTRODUCTION
First, I must appreciate the exquisite contribution that Mr. Bradept has made on this controversial topic. His argument opened the way for a truly profitable exchange of views between those whose differences center on whether the relevant statutes should be amended to accommodate instances where adolescents ‘consent’ to sexual intercourse.
However, I must confess that when I read his work, his argument seemed to suffer from some form of impracticability. First, he urges the legislature to review the law on consent where two adolescent minors have factually consented to sex. He opines that the law on defilement should be reformed to accommodate instances where adolescents have consented to sex. [1]
Secondly, proceeds to provide an alternative that in the event adolescent sex remains criminalized, then the law should be clear in differentiating situations of consensual adolescent exploration, which should be exempted, from situations where there is coercion or manipulation. [2]
However, I am of the opinion that the thoughts advanced by my colleague are to some extent impractical for reasons that he fails to perceive and accept the implications that may arise if consensual sex between adolescents is legalized.
Consensual Sex Between Adolescent Minors
The idea of adolescents engaging in sex is not an area that can be articulated in black and white. The law on defilement is indeed a hazardous area of controversy, where ugly decisions have become commonplace.
The provisions of Section 8 of the Kenyan Sexual Offences Act, are framed in a manner that criminalizes sexual activities perpetrated against a minor. As Mr. Bradept correctly puts it, the Act fails to incorporate instances where adolescents, when hormones are raging madly, decide to experiment on their prowess mutually.
The core reason for criminalizing sex between adolescents has always been that children below the statutory age of majority are incapable of making rational decisions and are therefore in need of protection from the state and a legal guardian. Moreover, due to the many physical developments that take place during this stage of development, adolescents tend to be unsure of themselves. They may not also strongly assert their decisions and are susceptible to coercion. [3]
Throughout his article, Bradept appreciates the fact that minors do not have the legal capacity to consent to sex or legal transactions. However, he proceeds to propose a framework that allows consensual sex between the adolescents. I must say that the only way to accommodate Bradept’s argument is by lowering the age of majority to cover the scientifically accepted age where a person is able to make rational decisions. This would however be practically impossible owing to the fact that children tend to develop or mature differently.
But perhaps I should say that that which is said to be wrong cannot be, simultaneously, considered as being developmentally normal. One thing that is undisputed is that sexual activity between adolescents, even if it is “consensual” should not be regarded as the acceptable norm. Whereas the court in Teddy Bear Clinic for Abused Children & Another v Minister of Justice and Constitutional Development & Another, [4] decriminalized consensual adolescents sex in South Africa, Khampepe J was of the view:
“Of course, there may be legitimate reasons for limiting a child’s fundamental rights in particular circumstances, due to the stage of his or her development, and in order to protect him or her”
One of the conclusions made by an expert in that case was in the following words;
“When adolescents are left to sort through sexuality issues and choices among themselves, they tend to engage in more risky behaviors for a variety of reasons, including poor decision-making skills and power imbalances in a relationship”.
Assumption of capacity in adolescents would also lead questions on how to determine or test understanding among the adolescents to curb instance where one of the adolescents has a clear understanding of the nature of sex than the other who is manipulated to sexual intercourse. Consequently, in such a case we might as well toss a coin in applying the law.
I fully agree with Bradept that criminalizing consensual sex between adolescent, though not explicitly recognized as a right, amounts to an infringement of their rights due to the interdependence nature of human rights. We must however appreciate that exposing children to too much freedom may work to their detriment as their decisions may have far more adverse effects than the temporary limitations to their rights and freedom until they attain the age of majority. [5]
Preventive Steps
To set the record straight, criminalization of sexual relations between minors should remain intact. The law protects adolescents from the harmful sexual conduct whether such conduct was directed at them by adults or by other adolescents. With regard to prosecuting both adolescents, in CKW v Attorney General & another, [6] the court was of the view that:
“There is no legal bar to the prosecution preferring criminal charges against both the children. In effect, if the prosecution had reasonable cause to charge both minors, they could do so.”
Section 239 of the Children Act provides for methods of dealing with children in conflict with the law. [7] This includes supervision orders, probation orders and community service order and in the case of a child who has attained the age of sixteen years, deal with the child in accordance with the Borstal Institutions Act.
In VK v Republic, Justice Korir while addressing sex between adolescents opined that: [8]
"It is my view that both the minor victim and the minor Appellant ought to have been protected by the law and at the same time punished by the law."
In this case, the learned judge proceeded to order a probation sentence of 3 years.
I fully agree with Mr. Bradept that the statutory scheme does not, in any nuanced manner, distinguish the different developmental stages of children. However, providing a framework allowing consensual sex between adolescents – especially those in teenage years who are, typically, both in need of care and protection - can be dangerous to the society. In line with this, I wish to adopt the sentiments of Prof Joel Ngugi J (as he then was) in the High Court at Nakuru in Republic v PMK that, there is a need to rehabilitate them as well as the need to fit the punishment to the crime as a way of enunciating the society’s denunciation of the criminal act by the minor.
CONCLUSION
Minors whichever the age they are in, are in need of care and protection against predators and themselves. Bringing forth consensual sex between adolescent will lead to exposure of children to risk such as contracting sexually transmitted diseases. It is thus evident as McLachlin J puts it, the need to protect children against themselves is as obvious as is their need to be protected from each other. [9] The legislature should instead of decriminalizing sex between minors, come up with better sentencing guideline to protect children against such sexual relations. This will not only act as a deterrence mechanism, but also a protective one.
REFERENCES
2. [ibid]
3. M Oberman ‘Regulating Consensual Sex with Minors: Defining a Role for Statutory Rape’ (2000) 48 Buffalo Law Review
4. (CCT 12/13) [2013] ZACC 35
5. B C Hafen ‘Children’s Liberation and the New Egalitarianism: Some Reservations about Abandoning Youth to their Rights’ (1976) Brigham University Law Review
6. [2014] eKLR
7. Chapter 141, Laws of Kenya.
8. [2022] KEHC 15798 (KLR) (1 December 2022) (Judgment) at Para 51
9. R v Nguyen [1990] 2 SCR 906
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