‘Unjust’ rulings prompt calls to amend sexual offences law

The crime Sexual Offences Act was trying to address has in some cases been abused in a manner that had not been contemplated by the drafters of the law. PHOTO | FILE | NATION MEDIA GROUP

What you need to know:

  • The crime the law was trying to address has in some cases been abused in a manner that had not been contemplated by the drafters of the law.

  • Some teens have been given long custodial sentences yet their ‘spouses’ wilfully eloped with them.

  • Extortion has also been witnessed in attempts to settle defilement cases out of court, despite the two ‘‘lovers” having consented to enter into a relationship.

The Sexual Offences Act was designed to cure a social ill where adults engage in sexual activities with minors without being punished.

Defilement is any sexual intercourse with a child under the age of 18 and, whether or not the child consents, it is a crime under the Act.

However, the crime the law was trying to address has in some cases been abused in a manner that had not been contemplated by the drafters of the law.

Some minors, who are meant to be protected by the law, have wilfully eloped to be in unions their parents do not approve of.

DEFILEMENT

Meanwhile, some parents have used the law to extort from the offender’s family or used it to teach the offender a lesson, not to go out with their teenage son or daughter again.

Interestingly, the law — by design — has denied the child a voice in the case to make it known to the court whether they were offended by the act or got into it willingly.

Though they are assumed to be the complainant and listed as such in court cases, it is actually their parents who report defilement cases to the police and argue the case in court for them, sometimes contrary to the position held by the minor.

SUICIDE

Children below the age of 18 are not capable, in law, to institute cases on their own and their consent is not recognised.

A special meeting of the Court Users Committee (CUC) in western Kenya, for instance, had in one of their forums observed that the police often forward defilement cases to courts to satisfy demands lodged by parents.

They noted that it was becoming increasingly common that some girls were “threatening to commit suicide in any event that withdrawals of cases against their boyfriends are not done.”

A mother expressed shock to learn that her daughter’s boyfriend had been sentenced to 20 years after the charge of defilement was proved.

PARTICIPANT

Her expectation, when she reported the incident to the police, was that he would serve a lenient sentence, enough to deter the 19-year-old from her daughter, 15.

The teenagers were living together as husband and wife prior to the boy’s arrest.

She told the court that since his conviction, and sentence, the thought had been gnawing at her consciousness. She urged the court to pardon him.

On her part, the girl said she was a willing participant in the sexual relations with the man.

WILLINGLY

She said her mother chased her away from home after she was suspended for sneaking out of school.

The probation report filed in court also revealed the two had been brought up by single parents, and lacked parental guidance and education on how to relate emotionally.

The girl was not interested in schooling, had decided she was ready to get married, identified the appellant as her husband, and willingly had sexual intercourse with him, High Court Judge Luka Kimaru observed in his judgment.

In quashing the ruling delivered by the magistrate’s court, Justice Kimaru ruled that although the prosecution had established its case to the required standard of proof before the magistrate’s court, the peculiar situation that the appellant found himself in was not contemplated when the Act was enacted.

FINANCIAL

“This calls for the amendment of the Sexual Offences Act to ameliorate the harshness of sentences in situations such as this one. Justice of this case demands that the custodial sentence of the appellant be substituted by a non-custodial sentence. The appellant is sentenced to serve one year probation,” Justice Kimaru ruled.

Extortion has also been witnessed in attempts to settle defilement cases out of court, despite the two ‘‘lovers” having consented to enter into a relationship.

In one probation report filed in court, the girl’s family had approached that of the offender through the Chief’s office but no agreement was reached given the outrageous financial demands of Sh100,000 to drop the matter.

MISDIRECTION

In another, the girl’s parents demanded Sh200,000 but the boy’s family felt the other family was taking advantage of the situation thus declined to co-operate, prompting the girl’s parents to report to the police, leading to arrest and subsequent conviction.

It was revealed that both families met at the administrator’s office where it was agreed that the boy’s family pays that of the girl Sh13,000 in token compensation.

However, while the family of 19-year-old boy was struggling to fulfill the agreement, the girl’s relatives unexpectedly disowned it, prompting the matter to be referred to the police station and court.

High Court Judge John Mativo was also faced with a case in which a girl had testified that they had agreed to get married, and were living as husband and wife.

“It was a serious misdirection of the law and facts for the learned magistrate to conclude that the offence of defilement was automatic,” Justice Mativo.

RAN AWAY

In this case, elders had met the girl’s parents, and it was agreed that the coming Tuesday, the man, the girl and elders would go to the girl’s parents home so that the girl could tell them what she wanted.

But that was not to be. The police, in the company of the girls’ father, raided the man’s home at night and found them sleeping on the same bed. He was whisked away.

The girl had asked the police why they were arresting her husband, aged 21.

In court, she admitted that she ran away twice when her parents came looking for her.

ADJUST AGE

Part of the recommendations the judges have made, through the National Committee on Criminal Justice Reforms (NCCJR), is the need to relook at the Sexual Offences Act and the issue of sentencing in such cases.

NCCJR was launched in January this year to spearhead comprehensive reform of Kenya’s criminal justice system.

High Court Judge Said Chitembwe had observed that the offence of defilement should not be limited to age and penetration, “if those were to be taken as conclusive proof of defilement, then young girls would freely engage in sex and then opt to report to the police whenever they disagree with their boyfriends.”

High Court Judge David Majanja was faced with an appeal where a teenage girl had attempted to adjust her age to save her husband from 20 years imprisonment.

EXAGGERATE

She testified that she was a willing participant in the offence, and that she was 17 years old. Further, that she left her home and lived with the man as husband and wife.

The girl told the court, “it was my mother who packed my clothes so that I could leave with him,” but the father, who was not a party to the arrangement and against this marriage, had reported to the police.

In court, he produced a baptismal card to prove his daughter was 14 years old, and not 17, when the offence was committed.

Justice Majanja observed that the girl was a willing participant in the offence and was willing to exaggerate her age but she was still below 18 years and thus the offence of defilement was proved.