New Bill gives women the right to make false allegations about sexual assault

If Parliament passes the Bill, women will now be able to report sexual offences without fear of being punished if their allegations are judged to be false.

Literally, they will have the right to lie about sexual offences — not that they always do — because that will no longer be a crime.

The Government has made this proposal with a single magical word, “Delete”, inserted against section 38 of the Sexual Offences Act contained in The Statute Law (Amendments) Bill, 2012.

The Bill is now awaiting the third reading, the stage where it is given the final approval by Parliament.

The Bill is an omnibus draft law seeking to amend 55 statutes to “remove anomalies and bring them in line with present-day conditions”, according Attorney-General Githu Muigai.

It is the same Bill that contained the controversial proposals to increase allowances and gratuity for MPs, which the Attorney-General has now withdrawn.

According to Prof. Muigai, section 38 of the Sexual Offences Act should be deleted because “it has been found likely to discourage the reporting of offences”. That, however, is debatable.

Women activists and organisations, including FIDA-Kenya, have for years now advocated for the removal of section 38, which they say is unconscionable.

However, it is true that women do make false allegations. In the celebrated case of Republic v Beatrice Wambura Mwangi, a 16-year-old girl was charged with the offence of making false allegation.

She had lied that John Kinyua Muhara defiled her in April 2005 and impregnated her, and causing the police to arrest him and charge him with the offence.

During the trial, the girl admitted that it was in fact one Patrick, not Mr Muhara, who had impregnated her.

“I feared to say that it is Patrick who defiled me, so I did tell police that it is John Kinyua (Muhara) who defiled.”

According to section 38, any person who makes false allegations against another person that he or she has committed a sexual offence shall be liable to punishment equal to that for the offence complained of.

The section, however, has been widely misunderstood. It does not say that if the accused is acquitted then the accuser will be found of having made “false allegations”.

That is not the case. An acquittal or finding of not guilty is not necessarily a finding that the accuser made “false allegations”.

A false allegation is deliberate lying when, for example, the accuser is seeking revenge, an alibi, sympathy or attention.

A complainant is not making a false allegation when she believes she was raped but was not.

She could be giving untrue information, for instance, because she is mentally sick or fantasises.

She could be giving untrue information because of a mistake or because she is confused, inconsistent, traumatised, or disorientated.

She could be giving untrue information because she has problems recounting the details of the sexual assault, is trying to make the rape sound as real as she thinks the court expects to hear, or does not have good communication skills.

That should not be confused with making “false allegations”.

Kiarie Waweru Kiarie, acting senior principal magistrate at Kibera Law Courts in July 2007, captures the confusion.

In his article, “The Sexual Offences Act: Omissions and Ambiguities” published in the Kenya Law Review Journal 2008-2010, he states: “Knowing that most Kenyans including those who have gone to school do not understand legal issues, one may be persuaded to argue that a false allegation may include where an accused has been acquitted, erroneous as it may be.”

Still, FIDA-Kenya views section 38 as mischievous and a gross injustice.

It believes it discourages women from reporting sexual abuses. In 2006, it filed a court petition to challenge the section, saying it discriminates against women and is contrary to the spirit of the Constitution.

The petition, still pending, may be overtaken by the deletion of section 38 if Parliament approves.

Then, men who insisted on its inclusion will lose and women will win. That is, they will be able to lie about sexual assault without legal consequences (to themselves).