SETTING THE CONTEXT
Defilement, one of the offences under the Sexual Offences Act of KenyaFootnote 1 (SOA), occurs when someone engages in an act that “causes penetration with a child”.Footnote 2 Penetration is defined as a “partial or complete insertion of the genital organs of a person into the genital organs of another”.Footnote 3 Genital organs are defined as “the whole or part of male or female genital organs and for the purposes of [the SOA] includes the anus”,Footnote 4 and a child means “a human being under the age of eighteen years”.Footnote 5
Defilement differs slightly from rape on the basis of the age of the victim. Whereas the victim of rape is an adult, the victim of defilement is a child. Rape occurs when someone “intentionally and unlawfully commits an act which causes penetration with his or her genital organs [when] the other person does not consent to the penetration, or the consent is obtained by force or by means of threats or intimidation of any kind”.Footnote 6 Consent to sexual intercourse by the complainant is a defence for rape but not for defilement.Footnote 7 The SOA does not distinguish between defilements committed by adults and those committed by minors.Footnote 8
In pre-colonial Kenya, sex was regulated by traditional norms and confined within marriage. There was no prescribed minimum age of consent to marriage: adolescents could marry soon after their initiation rites of passage (early adolescence).Footnote 9 Statutory laws (“imported” through colonialism) introduced the minimum age of sexual consent, pegging it to the minimum age for marriage. Although the age of sexual consent in Kenya is currently 18 years,Footnote 10 it has not always been so. For example, before 2003, section 145(1) of the Penal CodeFootnote 11 provided that a girl aged 14 years could consent to sexual liaison.Footnote 12 This was later raised to 16 years.Footnote 13 If the accused was married to the complainant, there was an absolute defence to defilement charges.Footnote 14 One would, however, not sustain an argument that adolescents were more enlightened and / or less sexually vulnerable before the enactment of the SOA.
Currently, unlike under traditional norms, the older cohort, especially parents, finds it inappropriate to educate adolescents on sexual liaisons and their associated effects.Footnote 15 The contemporary puritanical outlook regarding adolescent sex is said to have inhibited the development of comprehensive sex education curricula for primary and secondary schools in Kenya.Footnote 16 The available curricula capitalize on reproductive biology instead of sexual education.Footnote 17 Consequently, adolescents’ enlightenment on sexual matters comes mostly from their equally naïve peers,Footnote 18 the internet, as well as experimental sexual expeditions, which potentially lead them to penal proceedings for sexual offences.
Despite the strict criminalization of sex with minors in Kenya, statistics show that adolescents are frequently involved in sexual liaisons. The demographic and health survey covering 2008 and 2009 established that 22 per cent of men and 11 per cent of women within the 20–49 years age bracket had had sex by the time they attained the age of 15 years.Footnote 19 This percentage increased to 58 for men and 47 for women at the time they attained the age of majority.Footnote 20 Findings in a similar survey conducted in 2014 were not much different.Footnote 21 Both surveys established that only 14 per cent of girls and 1 per cent of boys within the 15–19 years age bracket had engaged in cross-generational sex.Footnote 22 This trend clearly indicates that most acts of underage sexual intercourse are between minors. It also echoes the position stated by the Committee on the Rights of the Child (CRC) that adolescents undergo rapid biological, cognitive and emotional growth, leading to the propensity for experimental sex.Footnote 23
Furthermore, an audit in 2016 on the criminal justice system in Kenya revealed that 15 per cent of juveniles remanded in nine sampled children homes in 2013 and 2014 had been charged with defilement or attempted defilement.Footnote 24 About 38 per cent of these were 17 years old.Footnote 25 Additionally, data collected from the Milimani and Tononoka children's courts showed that 30 per cent of criminal cases instituted against children in those stations in 2013 and 2014 related to sexual offences, predominantly defilement.Footnote 26 Some of those cases were consensual, such that they would be lawful had both participants been adults.Footnote 27 Some involved desired and planned “marriages”Footnote 28 that are, nonetheless, illegal in Kenya.Footnote 29
The prohibition of sex with children in Kenya is founded on the need to protect them from sexual invasions and premature sexual experiences said to be detrimental to their development.Footnote 30 Minors are, for this reason, presumed incapable of consenting to sex.Footnote 31 Anti-defilement laws seek to protect children from danger, such as pregnancy, venereal disease, and the physical and psychological harm that may arise from their lack of mature judgment.Footnote 32 According to the Kenyan High Court, such laws embody a general societal puritanical norm that minors should never engage in sex at all because they lack sexual autonomy and agency before they attain the age of majority.Footnote 33 In this regard, paedophiles and violent or exploitative adolescents were the main targets of the anti-defilement provisions, as revealed in the parliamentary records pertaining to the enactment of the SOA.Footnote 34
This article focuses on adolescents aged between 14 and 18 years, and is inspired by the judicial reasoning that a child aged 14 years has the capacity to testify without necessitating voir dire [a separate hearing to determine whether evidence is admissible].Footnote 35 Further, as stated in the English case of C (A Minor) v DPP,Footnote 36 14 years has been regarded as the age of discretion since the 17th century. Therefore, a person aged at least 14 years is not completely naïve and agentless.
This article shows that there are lacunae in the law arising from the lack of statutory “offender-victim” differentiation that, if present, would ease apportionment of blame in cases of mutual adolescent sex.Footnote 37 These lacunae cause dilemmas in the enforcement of the law on defilement in cases of consensual sex between adolescents who are close in age. Such participants are insufficiently mature to be sexual predators on each other, are not strictly in a position of trust and / or duty over each other, and do not even have the requisite legal capacity to consent to sex. Therefore, they cannot ideally be presumed to have solicited for sex.Footnote 38 Most importantly, they are not coerced, lured, manipulated or intimidated into the act. Their mutual participation can properly be described as “double or mutual defilement” where both are offenders and victims simultaneously “defiling each other”.Footnote 39
Enforcers are thus tasked with a delicate judicious balancing of competing factors, such as who should be charged and who should not. Other questions relate to the utility of the probable proceedings, sustainability of such proceedings, demands of justice and compliance with the principle of acting in the best interests of the child. This balancing has resulted in divergent judicial opinions from the courts of record (High Court and Court of Appeal) on the same or similar legal issues, thus making the law amorphous. Further, some minors have been victimized in the process, yet the law on defilement is supposedly designed to protect them. Consequently, it is imperative to develop a legal regime that protects children from sexual violations without victimizing them, encouraging their sexual deviancy or causing procedural difficulties whenever underage sexual offenders are indicted.
This article addresses three main aspects in relation to the problem. First, it demonstrates the policy and legal dilemmas caused by the lacunae alluded to above. It then explores possible solutions to the problem. Finally, it provides recommendations on how the lacunae can be addressed.
DILEMMAS IN HANDLING CASES OF MUTUAL ADOLESCENT SEX IN KENYA
Dilemma as to who should be charged
In CKW v The Honourable Attorney General and Director of Public Prosecutions Footnote 40 the Kenyan High Court (sitting as a Constitutional Court) was petitioned to declare section 8 of the SOA unconstitutional because it criminalizes consensual sex between adolescents who are close in age. The petitioner relied on the jurisprudence of the South African Constitutional Court developed in the celebrated Teddy Bear case,Footnote 41 in which sections 15 and 16 of the South African Criminal Law (Sexual Offences and Related Matters) Amendment ActFootnote 42 were declared unconstitutional for criminalizing consensual penetrative sexual acts between adolescents aged between 12 and 15 years. These two provisions of the South African law were subsequently amended, as discussed further below.Footnote 43 Before the amendment, South African law had had an effect similar to that of section 8(1) of the SOA in Kenya in respect of consensual adolescent sex.
However, the Kenyan Constitutional Court was not persuaded by the South African precedent. It ruled that criminalizing consensual sex between minors in Kenya is in their best interests, as it protects them from harmful sexual conduct directed at them by adults or other adolescents. Although the Kenyan court could not then be persuaded by the landmark Teddy Bear decision, it is submitted that the South African precedent is more relevant in Kenya now than it was, or seemed to be, when it was rejected. This follows, as shown below, policy and legislative developments, as well as the express views of Kenya's chief justice, suggesting a reconsideration of how properly to handle cases alleging sexual offences, including defilement, involving children with each other. It is noteworthy that these developments came after the rejection of the Teddy Bear precedent by the Kenyan High Court.
Regarding enforcement of section 8(1) of the SOA, the court posited that the act is gender-neutral, such that both males and females can be prosecuted for defilement.Footnote 44 However, boys have been disproportionately prosecuted, with girls not prosecuted in cases of “mutual” defilement.Footnote 45 This has caused apprehension among legal practitioners that the law on defilement has been applied discriminatively in such situations.Footnote 46 For example, when still in office, Kenya's former chief justice, David Maraga, once noted expressly that the current regime on sexual offences in Kenya discriminates against boys. He referred to an “obvious injustice [in] filling up the jails with teenage offenders [boys] who get intimate with fellow teenagers [girls] as they experiment in their adolescence”.Footnote 47
After the rejection of the Teddy Bear precedent, the Kenyan High Court has variously indicated that diversion rather than criminal sanctions is more appropriate in “mutual defilement” cases and that, where resort is taken to criminal proceedings, both mutual participants (boy and girl) should be prosecuted.Footnote 48 However, these suggestions have inherent limitations, both in law and in practice, as explained below.
Diversion
The Office of the Director of Public Prosecutions in Kenya (O-DPP) has adopted two policy documents relevant to diversion: the National Prosecution PolicyFootnote 49 and the Diversion Policy.Footnote 50
Diversion entails resolving criminal cases without resorting to full judicial proceedings.Footnote 51 It can take the “form of a simple caution or warning, an apology to the victim, payment for the damage done, referral to a structured diversion programme or restorative justice process or similar scheme”.Footnote 52 The two policies are consistent with the provisions of article 159(2)(c) of the Kenyan Constitution of 2010 (the Constitution) that enjoins the promotion of alternative dispute resolution. In respect of juvenile delinquents, diversion would therefore entail a waiver of penal proceedings against such children, to enable exploration of alternative rehabilitative models, such as guidance and counselling.Footnote 53
However, diversion can be resorted to once there is sufficient evidence to support an accused's culpabilityFootnote 54 and, most importantly, the accused has admitted criminal responsibility.Footnote 55 Further, admission to diversion is at the discretion of the prosecutor handling the matter.Footnote 56 Therefore, diversion is not an automatic procedure in Kenya.
Section 8(7) of the SOA requires minors first to be adjudicated delinquent before juvenile rehabilitative models are considered under the Borstal Institutions ActFootnote 57 and the Children Act.Footnote 58 In particular, it provides that, where the person charged with and convicted of any offence under the SOA is under 18 years, the court should sentence them in accordance with the provisions of these two laws. Thus, criminal proceedings against minors suspected of defilement supersede other procedural considerations under the current regime.
There is, however, a draft Children Bill (2017 version)Footnote 59 that would, if approved by the National Assembly, repeal the current Children Act. The bill proposes that diversion should be formalized to supersede judicial proceedings and any other statutory provisions to the contrary when minors are charged with crimes.Footnote 60 However, if the bill is enacted in its current form, the resultant law would, just like the two policy documents noted above, still demand unequivocal admission of criminal responsibility by the minor before the application of diversion. This is still problematic, as shown below.
The diversion provisions in the draft Kenyan Children Bill entail a position that is substantially similar to that in the South African Child Justice ActFootnote 61 and was one of the issues scrutinized in the Teddy Bear case.Footnote 62 The issue was whether, in proceedings where adolescents (between 12 and 15 years) engaging in consensual sex are charged with statutory rape or sexual assault, resort to diversion procedures under the Child Justice Act would be sufficient to ensure that the child's best interests are protected. The court ruled that, much as it removes the proceedings from ordinary criminal procedures, diversion fails adequately to protect the child's right to privacy and physical integrity. The reason is that the diversion proceedings still force the child into conflict with the law, among other ways, in acknowledging responsibility for the offence before a magistrate, prosecutor and probation officer. In addition, up until the time diversion is considered, the child in conflict with the law will have already interacted with arresting and investigating police officials, etc, thereby compromising the child's rights to privacy and integrity.Footnote 63 The court concluded that not even diversion under the Child Justice Act could save the impugned provisions from being declared unconstitutional.Footnote 64 Accordingly, the relevant provisions of the South African Sexual Offences Act were amended in 2015 to give effect to this judgment.Footnote 65
Joint or double prosecutions
There has been no recorded case in Kenya in which minors alleged to have defiled each other have both been charged, whether jointly or separately, although, as already shown, this is a position that the High Court has suggested. This suggestion echoes the position in South Africa before the 2015 amendments.Footnote 66 However, charging both participants, whether jointly or separately, would still pose policy contradictions and evidential difficulties, as demonstrated below.
Policy contradiction
There is no Kenyan jurisprudence on the policy ramifications of prosecuting a person for a protective offence committed against him or herself. However, there is relatively rich jurisprudence from the UK, a comparative common law jurisdiction. Although under the common law doctrine of stare decisis [precedent], Kenyan courts are not bound by decisions of UK courts, UK judicial decisions, just like those from other common law jurisdictions, have a persuasive effect on Kenyan courts. Thus, the UK case of R v Tyrell Footnote 67 sets out the leading case law. The material facts in this case were as follows. The law prohibited carnal knowledge of girls aged under 16 years.Footnote 68 However, a girl of the protected age solicited for and had sex with an adult male. She was convicted and sentenced for aiding, abetting, counselling and procuring the commission of that offence by a man upon her. She appealed successfully. The appellate court rendered that the offence in issue was legislated to protect underage girls from sexual violation and exploitation and that it was not the legislative intent to have a member of the protected category punished for that protective offence committed on her.
The rule was codified into a statutory provision in the UK in 2007 to the effect that a protected person should not be charged for a protective offence committed, attempted or intended against them.Footnote 69 The statute defines a protective offence as an offence legislated to protect a particular category of persons.Footnote 70 The policy underlying the rule was subsequently discussed in R v Gnango Footnote 71 in an inquiry as to whether someone can be convicted, by virtue of transferred malice, for the murder of a third person committed by his or her adversary in an affray such as a gun fight. The UK Supreme Court ruled that someone can be guilty of murder in such a case, as the rule in R v Tyrell is applicable only to protective offences and not general offences against persons or offences aimed at preserving public order. A “protective offence” was held to mean an offence legislated to protect a certain class of people, such as the underage.
Addressing instances in which persons who would otherwise be liable for complicity are exempt from punishment, Professor Glanville Williams termed and propagated the rule in R v Tyrell as the “victim rule”. He noted that “the best example is the victim rule, where the courts perceive that the legislation is designed for the protection of a class of persons. Such people should not be convicted as accessories to an offence committed in respect of them when they co-operate in it. Nor should they be convicted as conspirators”.Footnote 72
He indicated that the rule has wider acceptance in common law jurisdictions, despite originating from a single UK decision.Footnote 73 The “victim rule” has also been advanced by Baker, who argues that a “party to a crime cannot be an accomplice if she was the victim of the offence”.Footnote 74 He also asserts that the rule exempts from liability only “those within the protective class whom the particular legislation aims to protect”.Footnote 75 Equally, he postulates that protective laws are purposed as “shields” and should not be used as “swords” against the protected class of persons.Footnote 76
Thus, the “victim rule” represents a proper criminal justice policy. As it suggests, it is clearly a contradiction, even in Kenya, for someone to be charged for defilement committed against him or her. Even the current Kenyan National Adolescent Sexual and Reproductive Policy of 2015Footnote 77 places emphasis on, inter alia, the promotion of adolescents’ reproductive health and rights, rather than punishing them for defiance of sexual prohibitions. The aim is to ensure “full realization of adolescents’ potential in national development”.Footnote 78 Criminalizing and punishing mutual adolescent sex definitely discourages adolescents from seeking relevant services, due to probable stigmatization. This resonates with the court's reasoning in the Teddy Bear caseFootnote 79 that criminalization of mutual adolescent sexual conduct does not eradicate early intimacy, but drives it underground with riskier practices.
Evidentiary challenges
Supposing that the policy contradiction above is disregarded, prosecutorial decisions would range from charging each participant in consensual adolescent sex for defiling the other, or charging one for defiling, and charging the other either for soliciting the other to defile him or her or for aiding and abetting the other in defiling him or her.Footnote 80 A joint arraignment (as co-perpetrators) would appeal to most, as the offences are of the same character and would have been committed in complicity and in the course of the same course of transactions, warranting joinder of countsFootnote 81 and persons.Footnote 82 However, arraigning both participants as co-perpetrators would lead to charging “both complainants”, leaving the case without a chief witness.Footnote 83
Further, supposing the joinder is sustained, the liability of one co-accused would depend on the conviction of the other. Theoretically, someone would incriminate him or herself if he or she alluded to consensual sexual intercourse in his or her testimony against the other. However, evidence of both or either would be essential, particularly on the element of penetration, since that cannot be inferred in the absence of an allegation by the complainant.Footnote 84 The dilemma is compounded further by the constitutional protection that shields accused persons against both coercion to testify and self-incrimination.Footnote 85 Denial of penetration by both participants, which is more likely than not, would defeat the prosecution's case, even when armed with evidence of a medical expert.Footnote 86
Gendered definition of the term penetration
The SOA contains a textually and contextually gendered definition of the term “penetration”.Footnote 87 For the purposes of defilement, penetration requires the “insertion” of the genital organs of the perpetrator into the genital organs of the victim.Footnote 88 Given the sexual anatomy of females, it is indeed true that penetration is an act achievable only by males.Footnote 89
There is no proof that the “problematic” definition of the term “penetration” is the reason for the disproportionate prosecution of boys for defilement. However, the problem cannot be totally disregarded, given that the legislature conspicuously omitted the phrase “with his or her genital organs” after the phrase “causes penetration” in defining defilement in section 8(1) of the SOA but applied it in section 3(1)(a) in the definition of rape. Most importantly, section 2(1) of the SOA commands that an act alleged to have caused penetration must be an act contemplated under its provisions. Therefore, the legislature must have consciously intended the stated omission. Causing penetration in the definition of defilement was, thus, left to what is biologically possible. The argument would be different if the penetration were defined also to encompass the use of something else other than a genital organ.
Had the legislature intended the offence of defilement to be attributable to both genders, it would have adopted (just as it did with rape) the phase “with his or her genital organs” after the phrase “causes penetration”. Further, had the definition of the term penetration tended towards gender neutrality, there would have been no need to add the words “with his or her genital organs” to the definition of rape. Given that the legislature left no ambiguity in the definition of defilement, its interpretation must not deviate from the plain and ordinary meaning of the words used.Footnote 90 The legislature must be taken to have meant what it wrote and to have written what it intended.Footnote 91 Consequently, therefore, although the law recognizes that males can be defiled or raped depending on the victim's age, it textually and contextually operates on a notion that they can only be victimized by other males.
Section 14(3) of the Penal Code of Kenya states expressly that boys aged 12 years and above are capable of having carnal knowledge, but it is silent about girls. Therefore, it cannot be clearly argued whether, within that framework, girls are capable of carnal knowledge and, if they are, when they are deemed to assume that capacity. That provision of the law cannot be ignored, given that other sections of the Penal Code that previously related to culpability in sexual offences were repealed by the SOAFootnote 92 except for this provision. The provision was enacted when penetrative sexual offences were considered to be female violations.Footnote 93 For instance, section 145(1) of the Penal Code then enacted that “any person who unlawfully and carnally knows any girl under the age of sixteen years is guilty of a felony and is liable to imprisonment with hard labour for life”.
It has been propagated that boys who were capable of carnal knowledge could, in that historical time, engage in sex so long as their female partners were mature.Footnote 94 However, assuming this was the actual position, then the law had nothing to proscribe for females in relation to carnal knowledge. However, the provision does not fit well in a generally gender-neutral sexual offences regime like the one legislated in the SOA. Section 14(3) of the Kenyan Penal Code entails two archaic and stereotypical perspectives. First, males, even underage boys, are sexual aggressors and should be deterred by criminal sanctions so as not to sexually violate others, especially girls.Footnote 95 Secondly, females are sexually naïve and passive, thus more prone to sexual abuse, necessitating stricter legal protection than their male counterparts.Footnote 96 These perspectives are problematic, because they fail to appreciate that there are sexual offenders from both divides and that everyone requires equal protection of the law.Footnote 97 Therefore, it is submitted that section 14(3) of the Penal Code of Kenya should be repealed.
The SOA does not use the term “carnal knowledge”. However, its relevance was stated in Alexander Likoye Malika v Republic Footnote 98 when the Court of Appeal of Kenya held that the term, as traditionally used, encompasses the meaning ascribed to the term “penetration” under the SOA. Further, in Nzioka Kilonzo v Republic Footnote 99 the Kenyan High Court held that having carnal knowledge simply meant having sexual intercourse. The same meaning is given in Black's Law Dictionary.Footnote 100
It can therefore be noted that, in Irene Atieno Ochieng v Republic,Footnote 101 the Kenyan High Court confirmed the conviction of the unrepresented appellant (an adult female) for defiling a boy aged 17 years and six months with whom she had lived as “a husband and a wife” for about five months. She was accused of having “intentionally caused the penis of MOO, a boy aged 17 years, to penetrate her vagina”. The complainant's evidence was that he was the one who seduced the appellant and that he was “careful enough” to wear a condom when having intercourse with her. However, it is debatable whether “allowing penetration” bears the same legal meaning as “causing penetration”. In upholding the conviction, the High Court did not analyse how and with what, in view of the definition of defilement, the female appellant “caused” penetration. Unfortunately, the aspect of causation was not among the grounds of appeal raised. Had that analysis been done, the outcome of the appeal would probably have been different.
Utility dilemma
As previously indicated, sex with minors is prohibited to protect them from harms of premature sexual experience, whether visited on them by adults or other minors. However, the sexual vulnerability associated with adolescents is generalized.Footnote 102 Some adolescents, such those entering early marriage, desire and actively engage in sex consciously and willingly.Footnote 103
Adolescence is associated with rapid biological, cognitive and emotional development, bringing the propensity of experimental sex.Footnote 104 It has been noted that analytical and evaluative capacities in this regard are more enhanced in late adolescence (between 15–19 years).Footnote 105 The South African Constitutional Court observed that it is developmentally normal for adolescents to be sexual and that it is unwarranted to punish them once they explore their sexuality.Footnote 106 On the contrary, they should be supported and guided by the older generation. This observation was premised on a report compiled by child psychiatric and mental health experts. The report found that most children in South Africa (and by implication in Kenya) attain physiological sexual maturity in their early adolescence (between the ages of 12 and 16 years).Footnote 107 In this regard, it has been noted that “consensual” sexual acts among adolescents have been an inescapable reality since time immemorial and, therefore, it is inappropriate to criminalize their sexual explorations solely to render them sexual offenders.Footnote 108 Similarly, Talavera submits, in the Namibian context, that it is a myth to assume that children (adolescents) are asexual, since sexuality is a step-by-step inner personal experience running from birth to death.Footnote 109 Therefore, adolescents should not be taken as completely lacking agency when they actively engage in wilful and conscious sex. It is hence debatable whether all adolescents should be presumed vulnerable to warrant blanket protection.
It has also been contended that the inflexible age of consent restricts otherwise “mature” (near adult) adolescents from exercising their sexual autonomy.Footnote 110 Arguably, prosecuting and convicting presumed adolescent offenders, who engage in sex with their equal peers, turns the presumed adolescent victims into jail bait. Consequently, as shown below, there is one school of thought that supports the traditional comprehensive protection of minors against sexual intercourse, while another advocates the assessment of actual victimhood on a case-by-case basis.
Comprehensive protection approach
This approach requires that a conviction for defilement should ensue upon proof of three things (penetration, juvenility of the victim at the time of penetration and the identity of the perpetrator), unless the defence provided for under section 8(5) of the SOA (reproduced below) is pleaded and proved. This approach calls for a strict interpretation of the legal text without considering peripheral factors, such the wilful participation of the presumed victim or his or her previous sexual experience.Footnote 111 To benefit from section 8(5) of the SOA, the defendant should demonstrate the steps that he or she has taken to ascertain whether the complainant was an adult at the time of penetration, as demanded by section 8(6). These sub-sections provide:
-
“(5) It is a defence to a charge under this section if -
(a) it is proved that such child deceived the accused person into believing that he or she was over the age of eighteen years at the time of the alleged commission of the offence; and
(b) the accused reasonably believed that the child was over the age of eighteen years.
-
(6) The belief referred to in subsection (5)(b) is to be determined having regard to all the circumstances, including any steps the accused person took to ascertain the age of the complainant.”
It is not the minor's assent to sex or deceit that he or she is an adult that exonerates the offender, but the offender's reasonable belief, held after exercising due diligence, that the victim was an adult.Footnote 112 This defence presupposes that some adolescents may desire sex and mischievously solicit for or assent to it, but still places the burden of avoiding that mischief on the other probable participants. The burden almost certainly leads to injustice when the supposed offender is a minor. Indeed, there is no reasonable basis for a minor to inquire whether his or her sexual partner has attained the age of majority when he or she is already incapacitated: a blind person does not lead another blind person.
It is submitted that there is no certainty of actual “victimhood” when the supposed victim in consensual adolescent sexual actively engages in conscious and wilful sex. There is, however, a societal duty to protect him or her from his or her own juvenility and also the assumption of what is virtuous.Footnote 113 This gives credence to opinions that mechanical interpretations of the SOA sometimes lead to the punishment of some otherwise “innocent” people.Footnote 114 It is acknowledged that inflexible anti-defilement laws are, sometimes, used for ulterior purposes such as vindicating parents of non-offended “victims” and that they carry the danger of punishing adolescents and young adults alongside (if not more than) paedophiles.Footnote 115
The conviction and sentencing of a presumed offender may lead to psychological victimization of the presumed victim in some circumstances. For instance, the complainants in the defilement cases of James Mburu Githua v Republic Footnote 116 and JNN v Republic Footnote 117 regretted that they had led to incarceration of the appellants. The complainant in State v Gillson Footnote 118 condemned the incarceration of her fiancé saying, “thanks to the court system, I have lost the love of my life and the father of my unborn baby”.Footnote 119 Lack of actual “victimhood” is certainly one of the reasons, if not the sole reason, why some presumed victims turn hostile when called to testify.Footnote 120 The involved adolescents most certainly end up victimized in the process. As concluded in the Teddy Bear case, involvement in a variety of consensual sex is normal among adolescents and a form of sexual expression in the course of their development. Criminalizing such expression entails a “form of stigmatization which is degrading and invasive” and the effect of which is to “degrade and inflict the state of disgrace on adolescents”.Footnote 121
Assessing actual victimhood
Punishment for defilement is severe. Consequently, it has been contended that “the court must be convinced that what happened was defilement and not an act of exploration by the alleged complainant”.Footnote 122 This contention seeks consideration of other factors in addition to age before finding the presumed victim vulnerable. These factors include wilful marriage, engaging in explorative sex and the sexual experience of the presumed victims.
For instance, the complainants in Salim Owino Chitachi v Republic,Footnote 123 Mohammed Makokha v Republic,Footnote 124 Martin Charo v Republic Footnote 125 and Duncan Mwai Gichuhi v Republic Footnote 126 were all minors. Therefore, under the law none of them could have legally consented to sex. All the appellants had been convicted by subordinate courts for defilement purely on that account, even though evidence clearly showed that each of complainants had actively, consciously and willingly participated in sex, with some having cohabited.Footnote 127 On appeal, the High Court noted the fact that those complainants had no capacity in law to consent to sex. However, in each case, the appellate judge interpreted the prevailing circumstances to have demonstrated that the complainants had behaved maturely as they were objectively conscious of their actions and the probable consequences. The judges invoked section 8(5) of the SOA in the appellants’ favour, yet none of the appellants had pleaded or proved at the trial stage that they had honestly believed that the complainants were adults, as required by section 8(6).Footnote 128
The determinations in these cases do not reflect the letter of the law. Some have been criticized for being improper.Footnote 129 However, they are all objectively fair in noting that the appellants would have spent years behind bars without there being any actual offender-victim binary in the circumstances of the cases.Footnote 130 Therefore, the court, similarly constituted or inclined, would not hesitate to acquit a minor in cases of double mutual defilements. Although criticized by some quarters in Kenya, these decisions reflect the recommendation by the CRC that, while undertaking the protection of adolescents, states should take into account their “evolving capacities”.Footnote 131
Culpability dilemma
Minors, other than those considered incapable of committing wrongs (doli incapax) under section 14 of the Penal Code of Kenya,Footnote 132 can be found guilty of defilement. The only leniency, found under section 8(7) of the SOA, relates to retribution after an adjudication of delinquency. The general proposition is that defilement is designed to protect minors from adults and other minors.Footnote 133 As shown above, minors have been charged with and convicted of defilement.Footnote 134 However, it would be appropriate for that general notion to be applied against minors when they defile viciously or exploitatively.
It is submitted that the same incapacitation presumed in respect of “consenting victims” of defilement should be extended to the “consenting offenders” of similar age.Footnote 135 The rationale is that it is contradictory to propagate that adolescents cannot consent to sex as they lack the rational capacity to understand the nature and probable consequences of sexual intercourse, but that they are sufficiently rational to defile upon engaging in mutual sex.Footnote 136 For instance, in Erick Idd Shatala v Republic,Footnote 137 the Kenyan High Court held that the foolishness of minors who assent to sex should never be mistaken for consent. It is thus fair if the same finding of foolishness should attach to all adolescents who engage in mutual sex.
Besides, if one minor is presumed to have rational capacity to defile the other, then the mutual counterpart should also be presumed to have rational capacity to consent to sex, hence no offence would be committed. In WKN v Republic Footnote 138 and MDT v Republic,Footnote 139 the High Court held that it is inappropriate to charge minors who engage in mutual sex. The appellant in the first case had just turned 18 years when he defiled a girl aged 17 years. He was a standard eight (primary school) pupil and the girl was a form three (secondary school) student. He pleaded guilty but the facts read by the prosecution indicated that the sexual intercourse by the duo was consensual. He appealed against his sentence. The appellate court opined that it was absurd to consider the girl a “victim” and the boy a “villain” in the circumstances of the case. Allowing the appeal, the court stated that the offence of defilement is aimed at punishing adults who sexually prey on children and not teenagers who engage in mutual sex. Further, the court observed that there is a lacuna in the law regarding how to handle cases of consensual sex between teenagers.Footnote 140 In the second case, MDT v Republic, the applicant was 17 years old when he married and defiled a girl aged 15 years. Revising the sentence, the High Court observed that both the applicant and complainant were minors and neither could have consented to sex.
The two decisions are open to criticism. First, one need not be an adult to be guilty of defilement. It suffices that one is aged at least 12 years, thus doli capax. Footnote 141 Section 8(7) of the SOA attests that doli capax minors can be adjudicated delinquent for sexual offences. Secondly, consent per se is not a defence to accusations of defilement. Concern about how to treat minors who may inadvertently contravene the SOA was raised during its enactment, but it was remarked that there is a provision for committing delinquents to Borstal institutions.Footnote 142 Therefore, the law must have been intended to punish minors who engage in mutual sex with their peers. However, it is clear that the two judgments were rendered on good conscience, as the norm of finding adolescents culpable for engaging in mutual sex defeats the presumption of their immaturity. The norm is certainly unjust, given that defilement is a strict liability offence.Footnote 143 The two judgments are, therefore, consistent with the CRC's recommendation to avoid criminalizing “adolescents of similar ages for factually consensual and non-exploitative sexual activity”. Footnote 144
One of the philosophical foundations of strict liability offences is the supposition that strict offenders voluntarily assume the penal risk associated with engaging in dangerous activities that are proscribed by law.Footnote 145 Strict liability offenders are thus assumed to have preferred wrongs to rights. Therefore, adjudicating a minor as liable for defilement is similar to finding him or her sufficiently rational to have assumed the penal risk attached to having sex with another minor. Such an elevated legal consideration is faulty, except where the offence is committed in a vicious or exploitative manner.
In essence, the “victim-offender binary” is non-existent in situations of a double mutual defilement.Footnote 146 This is, however, not to argue that premature sex has no detriment to the growth and development of the minors involved. It is a fact that a number of adolescent girls in Kenya become pregnant, leading to teenage parenthood.Footnote 147 Nevertheless, there is no reasonable justification for rendering one minor a “wrongful aggressor or victimizer” in cases of mutual sex.Footnote 148
There have been several calls, from both the Bench and the Bar, for legislative reform to cater for that lacuna.Footnote 149 These much-needed reforms should, inter alia, address the obvious discrimination against boys in the current law on defilement. The reforms should also guard against exposing minors to paedophiles or sexual victimization by other minors or encouraging minors to have sex.
POSSIBLE SOLUTIONS AND RECOMMENDATIONS
The dilemmas alluded to above and consistent calls for reform led to an attempt at a legislative amendment through the Statute Law (Miscellaneous Amendment) Bill, 2016.Footnote 150 The amendment, according to the bill's memorandum of objects and reasons, would have, inter alia, reduced the age of consent to 16 years. This would have reinstated the position that had been enacted through section 145(1) of the Kenyan Penal CodeFootnote 151 before its repeal by the SOA.
However, the proposed amendments were opposed to ultimate withdrawal.Footnote 152 It was particularly contended that adjusting the age of consent would have exposed children to paedophiles.Footnote 153 Further, it was reasoned that minors aged 16 years may look biologically mature but socially immature to handle the consequences of their biological activities.Footnote 154 Adjusting the age of consent was recommended by the National Council on Administration of JusticeFootnote 155 and the High Court in Martin Charo v Republic.Footnote 156 The former recommended a change to 16 years while the latter left it open, but its common reasoning was that a number of jurisdictions have minimized the age of sexual consent in response to the social reality that minors become sexually active before attaining the age of 18 years. The amendment was opposed on the basis of societal fear, but with no solution to the problem under discussion.
Even after the withdrawal of the bill, the Court of Appeal rekindled the debate in Eliud Waweru Wambui v Republic.Footnote 157 It opined that the SOA requires serious, sober and pragmatic re-examination. Further, the court seemed to propose, albeit implicitly, by drawing examples from comparative jurisdictions, that the age of sexual consent should be reduced from 18 to 16 years. That proposal followed the court's opinion that a person is more likely, for the purposes of the deception contemplated under section 8(5) of the SOA, to be deceived into believing that a child is older than 18 years if the child is aged between 16 and 18 years. That proposal received serious criticism.Footnote 158 Recently, the Kenyan High Court, in SNN v Republic,Footnote 159 added weight in calling for provisions that would guide the handling of cases of sexual liaison between adolescents differently from those involving adults and adolescents.
Available literature demonstrates that “age gap” provisions and “Romeo and Juliet” provisions are formulae that some jurisdictions have adopted in solving this problem.Footnote 160 They both operate on age differentials between the victim and the offender,Footnote 161 and are consistent with the CRC's recommendation that consensual sex between adolescents should not be criminalized.Footnote 162
Age gap provisions
These are laws designed to absolve or lessen criminal liability in cases of consensual sex involving minors who are close in age.Footnote 163 They criminalize mutual sex between minors only if one of them is, at least, “a specified number of years older” than the other.Footnote 164 Consequently, they clarify the “victim–offender binary” by “deeming the elder the offender”.Footnote 165 Accordingly, regimes that have age gap provisions target punishing sexual victimization and exploitation but not sex per se.Footnote 166 Age differentials are normally slight, to shield participants from probable power and experience imbalances.Footnote 167 Accordingly, potential violations by paedophiles are curbed.
These provisions are founded on the understanding that the transition from childhood to adulthood is a gradual evolution of capacities and not a switch.Footnote 168 Cognition is that people have different rates at which they navigate the transition “from vulnerability and immaturity to autonomy and competence”.Footnote 169 This must have been the understanding of the Kenyan Court of Appeal, in Eliud Waweru Wambui v Republic,Footnote 170 when it stated that there is a mystery of growing up, which is a “process and not a series of disjointed leaps”, and that some minors may attain the age of discretion and be able to make intelligent and informed decisions about their lives and their bodies before they reach the age of majority. In this regard, the CRC has implored recognition that “individual experience and capacities” also affect development and evolution in adolescents.Footnote 171 It is thus deceptive to suppose that there is a single day in one's life, such as the 18th birthday, that catapults one from sexual vulnerability to sexual invulnerability; the assumption of a single inflexible age of consent can either be under-inclusive or over-inclusive depending on the individual.Footnote 172
Further, it has been contended that sexual decisions and freedom are not exclusively dependent on the age of the giver of the consent. Other factors, such as the age of one's sexual partner are also influential. Basically, the chances of predation and exploitation, which the law should curb, are higher in minor-adult than in minor-minor relationships.Footnote 173 Therefore, consent by minors in cases of wider age differentials would be presumed invalid.Footnote 174 The rider is that there is an age below which the latitude should never extend, due to the extremity of the immaturity.Footnote 175 For instance, in SNN v Republic,Footnote 176 the Kenyan High Court observed that a child aged six years was too young to have consented to sex with an adolescent aged 16 and, for that reason, charging the boy was proper. In particular, the court distinguished that case from POO (A Minor) v DPP & Senior RM Footnote 177 and GO v Republic Footnote 178 in which adolescents involved in sexual liaison were teenagers who were close in age.
Section 15 of the South African Sexual Offences Act,Footnote 179 as amended following the decision in the Teddy Bear case, is a classic example of age gap provisions. It prescribes an offence of having mutual sexual intercourse with a minor (statutory rape) if the consenting minor is “12 years of age or older but under the age of 16 years”. However, it is not an offence if both mutual participants are members of that age bracket.Footnote 180 Equally, it is not an offence if the older participant is aged either “16 or 17 years and the age difference between [the two] is not more than two years”.Footnote 181
The Romeo and Juliet provisions
These are laws formulated to offer defence or mitigation in cases of mutual sex between adolescents who are close in age.Footnote 182 The age differentials, as with age gap provisions, are slight such that they are at times used interchangeably.Footnote 183 However, while the age gap provisions decriminalize sexual involvement or lessen attached criminal liability, the Romeo and Juliet provisions provide an affirmative defence or mitigation.Footnote 184
These provisions are generally not titled Romeo and Juliet provisions in statutes but are referred to as such by reference to William Shakespeare's play of that title.Footnote 185 The characters of Romeo and Juliet were teen lovers and protagonists in the play.Footnote 186 Juliet was slightly younger than 14 years.Footnote 187 However, her mother was wishful that she would marry soon, just as she did to Juliet's father when she (Juliet's mother) was about 12 years old.Footnote 188 Romeo is described to have been youthful.Footnote 189 Commentators note that Romeo and Juliet would be sexual offenders in contemporary society.Footnote 190 Consequently, these laws are designed to excuse youthful love affairs, just like the one of Romeo and Juliet.Footnote 191
The notion behind the Romeo and Juliet provisions is that both adolescents are in the social wrong but their actions are understandable.Footnote 192 Although Kenya does not have Romeo and Juliet provisions, the High Court, in JNN v Republic,Footnote 193 described the concept as “the age difference between the appellant and the complainant was 4 years … akin to that of Romeo and Juliet: they were consumed with passionate love that they did not give a damn to what others thought of them, including the fact that the complainant was a teenage child”.Footnote 194
The age gap provisions, just like the Romeo and Juliet provisions, entail a fundamental recognition that there is an age under which it would be absurd to imagine that the child would even have the slightest autonomy.Footnote 195 The rationale for the decision in SNN v Republic Footnote 196 still applies in this regard.
The US state of Texas employs Romeo and Juliet provisions. It is a sexual assault in that state for someone to engage in penetrative sex with a child.Footnote 197 The child is, for the purpose of the offence, a person aged 17 years or below.Footnote 198 However, it is an affirmative defence if the offender is “not more than three years older than the victim at the time of the offence”.Footnote 199 The victim should be aged at least 14 years for the defence to operate.Footnote 200 The accused should also not be related to the victim within the degrees prohibited for marriage.Footnote 201 Lastly, the accused must not be a repeat offender.Footnote 202
CONCLUSION
This article has analysed the law on defilement in Kenya, specifically focusing on how it currently applies to adolescent consensual sex. The discussion has revolved around the flawed formulation of the provisions on defilement enforcement. It has been shown that there are indeed challenges in enforcing the Kenyan law on defilement in cases of consensual adolescent sex. Further, judicial determinations have failed to adopt a definite approach on the issue of adolescents engaging in conscious, wilful mutual sex. The mechanical application of the SOA in “double mutual defilements” results in the victimization of those the legislature sought to protect and for imaginary utility in some cases. Although there is a need to enforce the law, there is also a need to be just. It is apparent that there is a need to consider other prevailing factors besides penetration and the juvenility of the presumed victim unless the matter involves a child of tender years. Lastly, it should be appreciated that penal legislation alone is not enough in addressing issues of adolescent sex. Social intervention is equally (and sometimes even more) appropriate in this regard. Kenya should have regard to the CRC's recommendations and emulate the South African example informed by the Teddy Bear decision by decriminalizing consensual, non-exploitative sex between adolescents of a similar age. Adoption of either “age gap” or “Romeo and Juliet” provisions would avail the much-needed remedy.
CONFLICTS OF INTEREST
None
