Consensual sex among teens can lead to jail

It was a strange case where both the boy and girl were minors, both below the age of consensual sex. The question before the court was who was to blame between the boy and girl both under 18 years.

The 17-year-old boy was challenging a defilement sentence of 15 years slapped on him for ‘defiling’ his girlfriend. “Whereas the law outlaws sexual acts with minors, where the offence involves the minors themselves, it would be in the best interests of justice for the courts to look at the conduct of the parties including how the complaint is filed so as to protect the boy child from discrimination. There is also need as stated by Justice Fred Ochieng to take stock of the effectiveness of the exual Offences Act since its enactment and the effect thereof,” Justice James Wakiaga ruled.

The girl, a year younger than the boy, testified that they agreed to seal their love with a promise of marriage. In the case, the State argued there was an error in sentencing the boy, but held it would be appropriate to have both put on probation if they were first-time offenders, or hold them in a children’s correctional institution for three years.

Lawyers agree that the Sexual Offences Act is silent on who is to blame when minors have consensual sex.

But lawyer Rose Mbanya, who deals with children’s cases, says that the country should have a look at the criminal justice system for clear direction.

“We need to separate issues so that we can understand the status of crime,” Ms Mbanya says.

CHILDREN EXPOSED

Child Helpline Co-ordinator Martha Sunda attributes the issue to parents exposing their young ones to sexualised content when they are at home.

“The environment in which children are growing up is very ‘sexualised’. Many advertisements have a sexual inclination (and are aired during inappropriate times), access to the Internet and pornography is relatively unrestricted because of congested living conditions some children and parents may be forced to sleep in the same room-perhaps with a curtain to separate the two ‘rooms’. This then means the children are exposed to sexual activity and may want to act out what they see,” Ms Sunda states.

Studies conducted on minors having sex indicate that a majority of them had it for the first time because they just wanted to do it. According to a report in the Kenya Aids Indicator Survey, 25 per cent of minors said they had sex because they wanted to do it. There are others who did it because it just happened (21 per cent) and a third group of who did it for love (19 per cent).

In some instances, the girl or the boy agreed to it because the other one wanted to do it. 
In another case, a 16-year-old boy who was charged in court with ‘defiling’ his girlfriend of the same age had to face the court even after challenging the case under discrimination of the male child. Justice Ochieng dismissed the case but recommended that the State should look for avenues of addressing the issue other than in court.