By: ABIUD OCHIENG
Legal experts have called for the revision of the Sexual Offences Act to prevent it from being abused as it relates to consensual sex between minors.
According to lawyer Oscar Sang, there are many boys in remand homes facing charges of having sex with underage girls whose cases have dragged on because the key witnesses, the girls, have refused to testify against them.
“Others have been convicted and are serving their sentences either in probation hostels or borstal homes across the county, while the girls are going on with their lives,” he added.
Children’s rights advocate Enricah Dulo said that in most cases, it is the girls’ parents who push for the boys’ prosecution.
A sexual affair can be regarded as statutory rape even if there was consent because the law considers sex with minors an offence. However, if the culprits are minors, they are both put on probation if first-time offenders, but if they are found not to be fit for probation, they are sentenced to a borstal institution for three years.
“It is something we are grappling with. The challenge is that even when in a relationship, legally speaking, they are still children because they are aged below 18 years,” explained Dulo.
She said the Act is silent on when teenagers have consensual sex, or how to deal with it because “the aspect of statutory rape will still exist even where the boy did not force himself on the girl”.
She noted that there are instances where the girl’s parents drop the case after realising that it is affecting their daughter, adding that parents do not want to believe that their children are having sex.
According to a survey carried out in 2013 by research firm Consumer Insight, four in every 10 youth aged between 13 and 19 had engaged in sex.
“I personally feel there is need to review legislation in instances of consensual sex between teenagers,” Dulo said.
Lawyer Miriam Wachira of Pendekezo Letu, a lobby group that defends the rights of vulnerable communities, said most of the boys caught up in these cases do not even know that it is a crime to have sex with their fellow minor girlfriends. However, she said, there is a need to amend the Sexual Offences Act to address the challenges cases involving consensual sex between minors present.
What the law says
Section 8 (1) of the Sexual Offences Act states that “a person who commits an act which causes penetration with a child is guilty of an offence termed defilement”.
Section 11 (1) of the Act stipulates that “any person who commits an indecent act with a child is guilty of the offence of committing an indecent act with a child and is liable upon conviction to imprisonment for a term of not less than 10 years”.