LEGAL AID: My son has been accused of defiling his girlfriend

I am a mother of a 17-year-old boy who is in secondary school. My son is accused of defiling a 15-year-old girl in his school and she is now expectant. The matter was reported to the local police station, he was arrested but I bailed him out pending investigations.

The police were able to collect evidence of the alleged offence, and will probably conduct a DNA test after the child is born.

My son is going to be charged in court very soon. Both the boy and the girl admit to have had a sexual relationship for two years until the girl’s parents discovered and preferred charges against my son.

They have resisted any attempt to settle the matter between the two families claiming that my son’s actions have compromised the daughter’s education and future.

Being older, they argue that he took advantage of their daughter’s innocence.

The girl insists that she loves my son and was not forced into having the affair. She has threatened to commit suicide should he be jailed.

Is my son going being treated fairly?

Thanks for this question. This is a legal gap that has existed for a long time and also represents a dilemma for parents of sexually active teenagers.

The law provides a minimum sentence of 20 years should one be found guilty of defilement of a child aged between 12-15.

For this reason, it is important to thoroughly examine the circumstances of the alleged offence before sentencing.

One element to note is that this is a case involving minors. Even though your son is a minor, he can be held to account (criminally liable) for offences that he commits and hence can be accused and be convicted of any offence.

This being the case, we will interrogate the circumstances leading to this allegation.

The second element is on consensual sex by a child. The law states that minors cannot consent to sex.

This, therefore, means that the two minors in this case cannot be said to have consented to sex with any person and hence this cannot be a defence.

The second element is that there was no allegation of force. Both children agreed to commit the act and hence played an equal role.

Having established this, it means that the law cannot be applied discriminatorily against the boy. A ruling delivered by the High Court of Kenya (Constitutional Petition 1 of 2017) stated that in the circumstances the minors should be treated as those in need of care and protection.

This means that the children need to be counselled and be protected against sexual activities. If this matter is presented in court you will need to inform the court that your son is under age and the court will provide appropriate directions e.g. supervision by a Children’s’ Officer.

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Eric Mukoya is the Executive Director, Legal Resources Foundation Trust