KITUO CHA SHERIA BLOG

“In order to escape accountability for his crimes, the perpetrator does everything in his power to promote forgetting. If secrecy fails, the perpetrator attacks the credibility of his victim. If he cannot silence her absolutely, he tries to make sure no one listens.”
― Judith Lewis Herman, Trauma and Recovery

Can a child give consent to have sex?

In Kenya the age of consent is 18 years. Accordingly, the Children’s Act defines a child as one below the age of 18 years. This means that in our jurisdiction we recognize a child as a person who has not attained the age of 18 years ergo cannot comprehend the full nature and consequences of sex.

Thus such a child cannot have capacity to consent to any form of sexual relations. However, the recent judgment held in appeal Martin Charo V R No. 32 OF 2015 there seems to be a departure from this train of thought as established by the law.

The court acquitted the appellant. At summary, the appellant defiled a 13 year old girl. He KNEW she was thirteen. She in no way misrepresented herself TO BE ABOVE THE AGE OF MAJORITY BEING 18.  This is proven by his actions. According to the judgment, the appellant lied to the child’s brother of her whereabouts when he went to his premises to look for her. The appellant went further to raise alarm, so as to forcefully eject the victim’s brothers from his premises.

Shockingly, the court puts emphasis on the fact that the child willfully took herself to the appellants house therefore she consented. However Kenyan courts have held repeatedly as precedent that it is immaterial whether the victim consented to the act or not. Over and  above, the Sexual Offences act section 20 expressly disallows consent of a minor as a defense in such a scenario.  Children are unable to  fully appreciate the nature of a sexual act, so naturally they are incapable of consent. This holds true the world over. The judgment however puts the victim at trial and not the appellant.

According to the initial ruling, the prosecution proved as they ought to, that the appellant intentionally and unlawfully caused penetration of his genital organ into the genital organ of the girl aged 13 years.  Consequently convicting the appellant and sentencing him to 20 years in prison. All this was by the book and the court applied the law to the letter. That much was not in dispute.

The child behaved like an adult

The court on the appeal went ahead to state in the judgment that;

“… It is clear to me that although PW1 was a young lady aged 14 years; she was behaving like a full grown up woman who was already engaging and enjoying sex with men. “

This statement alone shows the deteriorating state of affairs of our society. The question here should not be the pristine nature of the child; rather we should interrogate our implementation system when it comes to defilement as emphasized in the 160 girls ruling. What the court admitted and also implied in the ruling of Martin Charo Vs. R, is that there are pedophiles, casually and repeatedly engaging in sexual relations with minors with absolutely no dread of the law and that some of these pedophiles may actually be let scot free by virtue of the supposed behavior of the child victim.

Further, the court went ahead to protect such repeat offenders from the law.  The Sexual Offences Act 2007 in the interest of justice and fairness provides misrepresentation as to age by the victim as a defense. If the child conducted herself as an adult who fully comprehends what she is doing neither her nor the appellant would have felt the need to hide her from her siblings. The Sexual Offences Act unambiguously rejects in toto consent as a defense in defilement matters. As a society we should not condone the willingness of any adult person, who has capacity, to engage in any sexual relations with a child regardless of the disposition and willingness of the child who knows no better.

The child is to blame? Shaming the child.

However, at this juncture it is important to ask the question of what is willing behavior in a child’s conduct in such a scenario? What is the measure used to dispose of one behavior as non –willing and another as such? The court has inadvertently opened Pandora’s box because one can never be completely sure of another’s intentions let alone a child’s especially in a sexual environment. The litmus test of right or wrong when dealing with children in such a sexual circumstance is on the onus of the adult! Never the child!

More so, the Protection Against Domestic Violence Act 2015, which includes defilement in the definition of violence allows anyone, not just the victim to report the matter to the police. We should make sure that we have created for the victim an environment conducive to reporting and trying of defilement. However, don’t such rulings act as a determent in the first place? Why would a child report sexual assault by an adult knowing full well that she/he may be victim shamed and no justice applied to the perpetrator of the offence?

We should consistently train our public officers and sensitize them on how to handle CHILD victims. Children should be treated as such. The test of who is a child is not and has never been their behavior but rather the age of majority.

Lastly, we should endeavor to set up more rehabilitation centers and other government institutions specifically geared towards child sexual assault victims that adequately address the physical, psychological and emotional treatment of the survivor to ensure that no general health repercussions extend into their adult life. We should ensure that as a society and a state we are nurturing healthy and wholesome citizens more so children as envisioned in our national values and national goals as contained in Vision 2030 and National Health Sector Strategic Plan II. Retrogressive thinking will only get us so far.

By

Wangari Karige and Samantha Oswago

LAED-Kituo Cha Sheria