Why lowering age of consent flies in the face of efforts to protect girls

The furore and emotional debate that followed a proposal by Kenya’s Court of Appeal to lower the age of consent to 16 years is an indicator of many things.

According to judges of the appellate court, the country should discuss challenges of maturing children, morality, autonomy, protection of children and the need for proportionality in punishing sex pests. They said men were languishing in jail for sleeping with teens “who were willing to be, and appeared to be adults”. The judges referred to the sentences as an unfolding tragedy.

There are many issues here which need closer understanding. First, what is the motivation for the judges’ proposal? Is it being proposed as a means to tackle issues with our laws, which means if no violence or coercion has taken place or been proved, offenders may only be charged with sexual abuse, not rape? Or is it because “men are languishing in jail for sleeping with teens who were willing to be and appeared to be adults?”

Second, it’s important to understand that the age-of-consent law is complex, and full of challenges just as the age bracket we are addressing. In fact, it is important to know that the ages of consent have been rising, rather than being lowered, since the dark ages.

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If one looks at the United States of America, for example, the age of consent throughout the country was apparently 12 throughout much of the 1800s; this then rose to 18 by 1920. The last state to raise the age of consent from 14 to 16 was Hawaii, in 2001. Today, most states have set it at 16 years. Still, the Seventh Circuit Court of Appeals boasts three different ages of consent — Indiana 16, Illinois 17, and Wisconsin 18 years. Are teens in Indiana more mature than those in Wisconsin?

Our traditions

Third, the age of consent, sex abuse and prosecuting policy are important human rights issues. Therefore, child protection must always be the priority in all discussions around the issue. This is why, for many, to lower the age of consent is unthinkable. It must reflect our traditions, religion, culture and history. So, is Kenya ready for the shift downwards?

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Unfortunately, all arguments that have been bandied around about children reaching sexual maturity quicker than others, and therefore are able to make choices about their own bodies is all nonsense. Can we not just let children be children?

Fourth, there is the issue of education – or lack of it – in schools and at home relating to sexual consent and behaviour. Talking to teens about sexuality is still one of the most life-affirming tasks parents face in our sex-saturated society.

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Even when studies in Kenya show that many young people have had sex before age 18, lowering the age is still problematic. The same teens indulge in consuming alcohol, using tobacco and a myriad of other age related offences. These actions remain unwise decisions, despite the fact that they were all undertaken with ‘consent’. Besides, the law does not allow teens below 18 years to vote, marry or even drive. Now, you want them to drive other things at 16?

Progressive voice

Consent must imply maturity and an ability to take responsibility for one’s actions. Those young people often have neither. Fifth, it is well documented and known that among teens, where passion and peer pressure are involved, they choose short-term rewards and discount long-term consequences. They lack important factual and contextual information, too. They may not know that if they consent to sex with their senior in whatever way, they have given their future.

This is why contemporary discourse on this issue should be far more nuanced than what it is. In the final analysis, a progressive voice must lend credence to the claims of the weak against the mighty. Otherwise this can easily be construed as part of the campaign by liberal activists determined to normalize pedophilia and decriminalize sex with our children.

Sixth, such situations could lead to an increase in abuse cases and increasing pressure to have sex at a younger age with further increases in STI rates and unwanted pregnancies; a big challenge already. There are wider issues relating to the sexualisation of childhood within our modern day culture. Why, pray, can’t we just let children be? Can adults please stand up?

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Parents must play their role and empower teenagers to stand up for their sexual rights. Sexually informed and confident youngsters are more likely to resist sexual exploitation. Candid discussions from the age of 12 will help youth deal with sex pests and sustain fulfilling relationships based on mutual consent and respect.

Ultimately, let’s give adults a reason to think twice — or five or even 20 times — before having sex even with a “willing” teen of 17 or 18, let alone 16 years.

Prof. Mogambi, a Communication and Social Change Expert, teaches at the University of Nairobi: hmogambi @ yahoo.co.uk

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