We expect a girl or boy growing up in Mwingi, Kitui County, to enjoy the same legal protection as one growing up in Kawangware and Runda in Nairobi. One way the law provides this uniform protection is through age of consent legislation drawing authority from various provisions of the Constitution, including Article 27, which decrees all are equal and are entitled to equal protection by law.
If this uniform protection is not the case, there is a disparity within the borders of the country that needs to be accounted for in legal thought. The laws of a nation ought to have uniformity and uniform effect among citizens, and courts in one location ought to give more or less the same judgment to a case with similar facts governed by the similar age of consent laws.
Internal variation in age of consent laws is but one issue, however. Another is external variation of law across countries. The boy in Marsabit could elope with the girl in Kilifi and, being beyond the jurisdiction of Kenyan laws and courts, marry under the laws of a country that has a lower age of consent than Kenya. If they returned to Kenya a few years later to visit family, would they face criminal prosecution? Would their marriage be recognised by Kenyan authorities and legal benefits enjoyed by married couples extended to them?
For countries that have high migration and an active tourism sector, age of consent problems are reported by local dailies and sometimes show up in courts. A traveller who fails to get appraised of variations in age of consent laws from one country to another takes a huge risk, since ignorance of the foreign laws is not a defence if one is within the jurisdiction of a foreign country. Age of consent provisions may therefore influence residence and transit decisions and this in turn influences the flow of money into a country.
Increase or lower
With this in mind, a State may decide to lower or increase its age of consent. Where governments are unable to change existing laws, usually because of opposition by local constituents, they have lax enforcement of existing laws to accommodate travellers from low age of consent countries. Related to this is the question of whether a State should be allowed by law to monitor the behaviour of its citizens resident abroad in countries that have a different age of consent provision. Further, should a country be concerned about movement of its “children” to countries that have more “permissive” thresholds? Would such laws be an overreach into the running of other countries and therefore a violation of sovereignty?
These examples invite us to reflect on why there are such wide variations in age of consent laws across the globe and in some instances variations within the borders of a country where uniformity would be expected. The global age of consent ranges from 12 to 18 years with a median age of 15 years, according to the World Population Review 2021. In Kenya, the statutory age of consent is 18.
There does not seem to be a correlation between age of consent and the economic development status of a country. Japan’s national laws has it at 13 with provincial variations within Japan that can be as high as 18. In the US, the age of consent in most states is 16 but there are a few states that have set it at 17 and others at 18. There are also religiously conservative countries that prohibit sex between unmarried persons, but do allow marriage as early as 14 years. Some allow girls to marry at a younger age than boys. France only recently set its age of consent at 15. It is 16 in the UK.
The age brackets
Of the 10 countries in the world with the lowest age of consent, four are African countries. Interestingly, African countries are also well represented in the 18 years bracket, which has Kenya, Uganda, Tanzania, Ethiopia, Egypt and Nigeria. The lower bracket of 12-14 has Angola, Niger, Madagascar and DR Congo. This pattern of variations is evident across Europe as well.
It is either that countries, provinces and communities set the age of consent randomly, hence the variations, or these variations have deeper meaning. In my view they tell two stories about society and law. First, law regulates individual behaviour but in doing so is influenced by context, reality, economic conditions and belief systems. Secondly, law regulates human interaction and cements relationships as necessary complements to important objectives such as procreation, happiness, fulfilment, and the need to give expression to the preferences of the majority while protecting the minority and the vulnerable, including children.
Within countries, the social, economic, religious and cultural realities of particular communities are different. There would be no need to legislate on age of consent if these realities were not the cause of problems. For instance, economic conditions could force children into exploitative relationships and the law responds to this context by legislating an age of consent. Age of consent laws also reflect histories of imperialist domination, a context replete with denigration of non-western cultural and religious practices and violence against black bodies.
Age of consent laws in colonial contexts also reflect colonist impulses to “protect” natives but also to dominate them by saying they are always to be treated as children. There is also the opposite impulse, which is to civilise them into the higher civilisation of white religious and moral practices. This partially explains the age of consent in certain countries that embraced foreign religious practices during the colonial era.
Racism and colonial domination gives the imperial State control over black bodies and domination of their minds by denying they dominated their own agency over consensual sex. The age of consent in India was 10 in 1892 and is now 18, and there are ongoing debates to lower it to 16 because there are problems with incarceration of partners below 18 engaging in consensual sex but charged with statutory rape at the instigation of parents of girls.
We can, therefore, begin to account for these jurisdictional variations by observing contexts. That no one context would be similar to age of consent variations across countries is therefore unsurprising. Each country expresses its sovereign will by having laws that appreciate its realities. This brings us to the second consideration, the intentions of the law. Law’s main intention in setting age of consent laws is to punish wrongdoing, that of engaging in an act that requires consent because it involves interaction with the body of another. However, both or one of the persons involved is incapable, legally speaking, of giving that consent because they have, in the eyes of the law, not developed sufficient mental capacity to make decisions on their own and in fact most decisions affecting them are made by their parents or guardians or with the consent of their parents or guardians.
The question then arises; is all sex outside law’s provisions on consent wrongdoing warranting criminal punishment? Are law’s intentions met by a blanket rule punishing all sexual interaction by or with persons below the age of consent? Legislators in many countries are arguing that the law’s intentions are not served by punishing young innocent love if the true intention is to punish wrongdoing.
When criminal punishment has a discriminatory effect, such as when boys are prosecuted for statutory rape and the girls are not because the parents of the girl wield undue influence on police to punish the boy, law’s intentions are defeated. Punishing the boy does not protect the girl if its end is to protect patriarchal ideas that a virgin girl is more valuable than a “deflowered” girl, without a parallel standard for boys, or to protect “honour of the family” more than that of the girl in whose name the punishment is sought. In moving away from this, the law reckons that its intentions to protect children can instead be circumvented to serve patriarchy.
It is from this thinking that some countries have legislated exceptions to the general rule of punishing wrongdoing for all non-consensual sex. These exceptions include no criminal punishment when both parties are below the age of consent and have had sex voluntarily. Another instance of the law making the distinction between punishing love and punishing wrongdoing is found in conservative communities that prohibit sex out of marriage but allow persons below the age of consent to marry with the consent of their parents or guardians.
In the first example, it is not that young lovers have capacity to consent, it is that the law’s intentions of punishing wrongdoing would not be advanced by punishing them. In the second instance, the law considers that decisions made with the consent of parents meet the law’s objectives, and not just in matters of marriage, but in other contractual arrangements where parents consent on behalf of children.
When the intentions of the law are not served by a blanket rule, there will be exceptions created to avoid absurd or unfair outcomes. The exceptions align law with justice, especially where the human and social cost of having a law outweigh the benefits. Be that as it may, exceptions should never displace the general overriding intention of the law. It is a fact that there will be a power imbalance between a child and an adult that exposes the child to undue influence, negating any possibility of mutual agency and freedom of choice.
Power imbalances breed violence, threat of violence and exploitative dependency. Consequently, law prohibits incest because children are dependent and subordinate to their relatives who provide for them and control their lives. A child is socialised to obey a caregiver and this relationship makes the child vulnerable, negating consent even if they were over 18 years of age.
Other relationships presenting power imbalance problems are relationships of employment, education, special homes, foster care, etc. The dependent nature of these relationships eliminate completely the possibility that a child or even an adult could consent. The legal thresholds of capacity to consent applies in other areas such as making contracts, driving, drinking, voting at elections and so on.
Pain of the society
At the heart of age of consent laws is the reality of heart-wrenching pain in society. Sex without consent is rape or defilement, assaults to the physical body that cause physical, mental and emotional injury. There must be care and trepidation in discussions of exceptions that law makes to the general rules of punishing sexual assault. We live in a patriarchal society that has laws that routinely subjugate women and girls. This context should not be ignored.
Law advances its intentions by choosing who enjoys rights and who carries obligations to respect or advance those rights. Kenya’s Sexual Offences Act, for example, allows an adult who has had sex with a person below the age of consent to say in their defence that the minor lied about their age and the adult reasonably believed they were telling the truth. This exception to the blanket rule places an obligation on the adult to take reasonable measures to ascertain the truth.
Lastly, age of consent laws are created with its context and intentions in mind, yes, but also practical consequences. Where the age of majority and age of consent vary, should the rights of adults, for instance, the right to reproductive health, including access to contraceptives, protection from STDs, become available to those who have reached the age of consent but are not yet 18?
[The writer is founder, Prof Kang’ara & Associates Advocates, SK&A Law Office, Nairobi]