Access to JusticeMarch 17, 20210 CommentsKituo Cha Sheria

The question on how to best handle situations where two minors defile each other is a common one in Kituo Cha Sheria’s community paralegals forums.  These cases are numerous in our communities. Two minors mutually decide to experiment on sex and when the girl gets pregnant, her parents report to the police and the boy is arrested.

Defilement is a crime under the Sexual Offences Act. It is defined as an act which causes penetration with a child. Consent in these cases is immaterial. While this law is aimed at protecting children from predators it does not envisage a situation where two children are involved in sexual activity hence the provisions are applied blindly to both children and adults. As a result, our borstal facilities are teeming with young men serving lengthy sentences for having sexual intercourse with adolescent girls who consented to the act. Not only is it discriminatory to only arrest the boy but also illegal that children get charged.

The Constitution of Kenya provides that a child’s best interests are of paramount importance in every matter concerning the child. Exposing minors to the harshness of the criminal justice system has a lifelong effect on children. Detention affects children’s physical and mental health preventing the enjoyment of their right to childhood, which includes the right to live in a secure and nurturing environment free from violence, fear, want and avoidable trauma. The minors are usually held in facilities that lack adequate staff and infrastructure necessary for life skills training, counseling and other rehabilitative support.

They may face violence and other abuses from fellow detainees and also sexual assault especially when held with adults in police holding cells. Detention stigmatizes them as delinquents and exposes them to others who have committed more serious crimes. It also increases the likelihood of the children breaking the law again. Additionally, having a criminal record in Kenya prevents a person from being employed to work with a child; from holding any position which places him or her in authority; from supervision or care of a child; from becoming a foster parent or an adoptive parent; and from being able to establish a private school.

Non-intervention is the best response especially in non-serious matters or in matters where the family and school are likely to react in a constructive manner. The police, prosecution and other agencies should have discretion to dispose of such cases and divert them to community institutions. This discretion should be at all stages of the proceedings and at different levels of the juvenile justice administration starting from investigation level to disposition. The police and prosecution should be able to divert such defilement cases to community institutions considering the protection of children and the need for proportionality.

The Children’s Act provides for children who should be considered to be in need of care and protection. It includes “a child who is truant or is falling into bad associations; or who is prevented from receiving education; or who is pregnant; or who has been sexually abused; or subjected to FGM or early marriage; or who uses and traffics drugs.” The list does not mention children who defile each other. However, the list provided is not an exhaustive one since the word, ‘including’ is used. Therefore, children who defile each other should be treated as children in need of care and protection and courts should give care, guidance and supervision orders rather than criminal sanctions. 

Closeup of two children holding hands – one African American and one Caucasian

In conclusion, there is a need to amend the Sexual Offences Act to deal with the predicament that it created against children. In the meantime, the ball is in the hands of the criminal justice system. The police and prosecution should divert cases where minors defile each other to community institutions like the church and schools. When intervention of the law is unavoidable, the Court should consider both children to be in need of care and protection and grant care and guidance orders.

By Diana Righa
Programme Oficer, Kituo Cha Sheria

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