I fear I may have defiled a minor

Dear Fida Kenya,

I met a girl recently at a restaurant and I did a ‘chips funga’ only to realise the next day that she was underage. I am living in fear because her parents are threatening to take me to court for defilement. I don’t know how they knew my house but they are demanding that I give them money or they seek legal action. Please advice.

Alex

Dear Alex,

Before we look into the issues that arise from your query, allow us, to elaborate on the meaning of ‘chips funga’, which we know is common parlance for a ‘one night stand’.

In most cases, this sexual activity may not lead to a relationship beyond that one encounter. You indicate that the girl’s parents have threatened to have you prosecuted for defilement. Defilement is an unlawful act under the Laws of Kenya. It is dealt with under the Sexual Offences Act, 2006 (rev.2007), which describes it as where one has an act that causes penetration (within the meaning of the Sexual offences Act), with a child.

A child is defined as a person who is aged below 18 years. Under the law, a child has no capacity to consent to a sexual act, thus the fact that she did in fact consent to the act is irrelevant.

In your case, your defence is that you did not know that the girl in question was a child. However, while you may raise this as a defence, it does not bar the complainant from pursuing prosecution against you.

Once the matter is reported to the police, they will investigate the matter and if there is evidence pointing to your guilt, a suit will be filed against you in court. You will by then have been afforded an opportunity to state your side of the story, which will be recorded by the police in a statement. Remember, even when the suit is filed in court, the prosecution will have to prove your guilt. This will be against the defence you give in court and that of your witnesses. The threshold for the court to make a finding of guilt is quite high.

If the matter proceeds to court, the magistrate, in considering your defence, would have to look into the circumstances of the case to be satisfied whether it was difficult in your circumstances to determine that the girl was a child. There have been cases where the court was satisfied that it may have been difficult for one to come to a conclusion that the girl was in fact a minor given her physique and demeanour.

The threat by the parents amount to extortion, itself an unlawful act. There will be no guarantee that if you pay them, they will not return later to demand for more money. In the event the family takes legal action, it would be advisable for you to retain the services of a lawyer who handles criminal matters for you to be properly advised on how to defend yourself.