On teenage sex, we are burying our heads in the sand.
In a 2017 Guttmatcher Institute Report, From Paper to Practice: Sexuality Education Policies and Their Implementation in Kenya, Sidze and her co-authors say that:
Nationally, more than a third of adolescents (those aged 15–19), whether married or not, have had sexual intercourse (37 percent of females and 41 percent of males), and about one-fifth are currently sexually active. The median age at first intercourse is 18 for females and 17 for males, yet among 15–19-year-olds, 11 percent and 20 percent each gender, respectively, initiated sex before age 15.
The Children Act of 2001 defines a child as “any human being under the age of eighteen years.” With this definition, it is assumed that children have no capacity to make an independent choice.
The law does not recognise that there can be two consenting teenagers. When parents get wind of their children’s sexual activity, they can become legitimate complainants alleging defilement. This is what is sending thousands of teenage boys to jail.
Chief Justice David Maraga was right in flagging out this legal trap. The Law as it is, leaves the Judiciary with a societal burden of dealing with the minors who engage in consensual sex. “This is one of the areas I have had serious difficulties with, the boys and girls are our children. I have no problem when the perpetrator is an old man, but when it comes to boys and girls between the age of say 17 and 20, the Sexual Offences Act punishes the boy most under defilement.” Justice Maraga said.
What is sending shivers down the spines of many parents of boys are the provisions in Section 8 under defilement:
1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
2) A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life.
3) A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.
4) A person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years.
The Act, however, treats cultural and religious sexual offenses more leniently. It states that “Any person who for cultural or religious reasons forces another person to engage in a sexual act or any act that amounts to an offence under this Act is guilty of an offence and is liable upon conviction to imprisonment for a term of not less than ten years.”
The use of the term “forces” makes it difficult to interpret and as a result creates a window for defilement of minors as young as 11 years old. It is common knowledge that some communities in the Coastal regions, Nyanza and the Rift Valley still protect harmful cultural practices.
The 2019 Economic Survey shows an alarming increase in the number of juveniles committed to jail for serious crime including sexual offences. Some 2,241 minors (below age 17), mostly boys, were sent to jail in 2018 up from 1,556 in 2017.
It is such an alarming number of young people that the Judiciary and other likeminded people are looking for the best solution to dealing with the teenage sex crisis.
The crisis is increasingly aggravated by the Internet and it isn’t going to end without society making some adjustments.
If age of consent were to be lowered to 16 and strictly enforced across the board without exceptions based on either culture or religion, it will lessen incarceration of the boy child by as much as 50 percent.
This argument is based on the Guttmatcher Institute Report findings with respect to the median age at first intercourse being 18 for females and 17 for males.
The report also suggests that there should be a coordinated effort between the government and civil society organisations to urgently develop and implement a comprehensive and age-appropriate sexuality education program in Kenya that is based on internationally recognised standards and the latest evidence on what constitutes a successful program.
We have always fallen short of glory whenever faced with difficult issues. The issue with the debate on lowering the age of consent from 18 to 16 is complex and one that requires a lot of thought.
Many have rushed to issue populist statements that lack evidence. Some are making statements without knowing the genesis of the problem.
We have a troubling law that must be changed or else we destroy the lives of many young men.
The writer is an associate professor at University of Nairobi’s School of Business.@bantigito