Why half of Kenyan men should be in jail for sexual offences

In May 2013, a 16-year-old boy – let’s call him Calvin – invited his girlfriend to his house. It was a Sunday and his parents were out. His girlfriend – let’s call her Joy – was also 16 and lived in the same neighbourhood.

The two probably had something to eat, or started to watch a movie. And then, one thing led to another and they had sex. The details of how Calvin ended up being charged with defiling his girlfriend are unclear – perhaps someone walked in on them, or maybe Joy told someone about it later.

But Calvin was arrested nonetheless, and charged with the offence contrary to the Sexual Offences Act 2006. According to Section 8 (4) of that law, a person who defiles a child who is between the age of 16 years and 18 years is liable to imprisonment for a term of 15 years.

Calvin’s complaints that sexual act between him and Joy was consensual, and that indeed Joy was his girlfriend, were dismissed. He was found guilty.

He then lodged a case – Petition No 6 of 2013 in the High Court of Kenya at Eldoret – against the State, arguing that his arrest and trial for the offence were unconstitutional.

It has become a landmark case in Kenya’s jurisprudence, as it upheld the criminalisation of sex between teenagers.

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Society mostly disapproves of sexual activity between teenagers under the age of 18, with good reason. But what many parents (and teenagers!) don’t know is that sex under 18 is actually a crime, even if the teenagers are age-mates, known to each other and the act is presumably consensual.

Hormones and hypocrisy

This is not an abstract, distant matter that only affected one boy in Eldoret. A recently released audit of Kenya’s criminal justice system found that 30 per cent of cases faced by children in children’s courts are sexual offences, the vast majority being boys charged with defilement. By contrast, sexual offences make up just 2.6 per cent of cases in adult courts before magistrates in Kenya.

Fifteen per cent of children entering remand homes are on defilement charges. Thirty eight per cent of them were 17 years old, just under the age of consent.

The audit report recommended the review of the age of consent down to 16, a proposal which was brought up in Parliament last December.

It was intended to reduce the “over-criminalisation” of adolescent sexual behaviour, and allow legal access to birth control and sex education. But the Bill was shot down, with various moral arguments against “allowing” teenagers to have sex.

Still, it seems the horse has already bolted from the stable, hormones raging and all.

And there is much hypocrisy at play here. According to Kenya’s latest Demographic and Health Survey, 15 per cent per cent of women aged 20-49 had already had their first sexual intercourse by age 15, and half (50 per cent) by age 18.

For men, the trends were similar: More than one in five (22 per cent) of men aged 20-49 had first sexual intercourse by age 15, more than half (56 per cent) by age 18.

At county level, the youngest sexual debut for girls was in Migori (median age 15.5), Homa Bay (15.7), Samburu (15.7), Kisumu (16.4) and Siaya (16.6).

And for boys, Meru had the youngest sexual debut (median age 14.6), followed by Samburu (14.9), Homa Bay (15.6), West Pokot and Machakos (both age 15.8).

In other words, teenagers are already having sex, and most of today’s parents who are vigorously opposing the proposal had an early sexual debut themselves, no different from their children.

If the law was to be applied across the board (and assuming teenage boys have sex with girls their age or younger), at least half of Kenyan men today should be in prison for defilement.

But in practice, preferring charges against boys for sex depends on how angry the parents of the girl are.

The judge in Calvin’s case, Fred A Ochieng, upheld the view that minors are incapable of giving consent, so whatever sexual activity they get up to is, by default, defilement.

Discriminatory to boys?

But here is where it gets murky. The chairman of the North Rift Chapter of the Law Society of Kenya, David Rioba Omboto, participated in the court proceedings as an amicus curiae (friend of the court).

He pointed out that Calvin was also a minor, and so he too was incapable of giving consent and was technically defiled. In the opinion of the LSK, Mr Omboto said, both children should have been punished before the law for engaging in sexual intercourse, and charging only the boy with the offence was discriminatory.

But the wording of Sexual Offences Act criminalises penetrative sex of a minor this way: defining penetration as “partial of complete insertion of the genital organs into the genital organs of another person.”

By framing it this way, it by default makes defilement a crime that can only be committed against a girl, and not by her – it is difficult to imagine that the sexual organs of a girl can penetrate those of a boy so that she could be charged with this crime.

The judge said that if Calvin wanted Joy charged with the offence, he should have lodged a complaint (perhaps of sexual assault) against her. But he didn’t, and so could not use that as a factor against his case.

The court did not explore the definitional dilemma of what constitutes defilement or penetration, and said that in Kenya, there is no express or implied requirement that when two children are involved in sexual activity, both of them should be charged with the offence of defilement.

But there is also no legal bar to the prosecution preferring criminal charges against both children, the court said. If the prosecution had reasonable cause to charge both minors, they could have done so.

Because the prosecution didn’t, the judge’s hands were tied – he could not rule on a complaint that was actually not before him.

Circular reasoning

In any case, the judge said, if the two minors were genuinely, freely and consciously engaging in consensual sexual activity, it would be unlikely that either of them would thereafter lodge a complaint against the other, in respect to an act that they had consented to.

“A complaint against the other person connotes some element of coercion or deceit employed by the party complained against. In those circumstances, the activity would not have been wholly consensual,” the judge said.

This is a form of circular reasoning that law scholars would later find wanting in their analysis – the judge was (confusingly) saying it was not consensual because there was a complaint, and there was a complaint because it was not consensual.

Still, even if neither party complained, a crime was still committed according to the law.

And the court also had another form of circular reasoning underpinning its ruling.

Calvin’s lawyers had argued that although adolescents need guidance in their sexual expression, criminalising sex between adolescents is an excessively harsh response for what is a normal stage of development, that it degrades and inflicts a state of disgrace on adolescents.

But Judge Ochieng said that because teenagers need guidance in their sexual expression or else they may engage in risky behaviour, that implies that certain forms of sexual activity are wrong.

In other words, that which is wrong cannot be said to be developmentally normal, and that which is normal ought not to be considered wrong.

Ultimately, Calvin’s petition was dismissed, and he was found guilty of the offence. The judge only put the ball in the court of child psychologists, to find out if there are other ways to handle the question of teenage sex without having to resort to criminal proceedings.

The Kenyan Parliament did that just recently, in trying to lower the age of consent to 16.

But it came under fire when it was argued that that would leave the door open for older men to seduce school-age girls.

Romeo and Juliet

A new law was proposed this week, with Majority Whip for the National Assembly Katoo ole Metito saying that they would introduce a law that will protect boys who have consensual sex with their age-mates.

Some countries have “Romeo and Juliet laws”, named after the tragic Shakespearean characters in which Romeo was 16 and Juliet was 13. The laws acknowledge that intimacy is not the same as molestation, and most of them take into account the age difference between the minors.

In most jurisdictions that have this provision, the age gap must not be more than four years, and both must be over 15, for example.

But it would still criminalise sex between older men and teenage girls.

This is the kind of law that Parliament is considering.

Calvin and Joy’s case continues to guide the application of laws against teenage sex in Kenya. The High Court of Kenya disagreed with the view that punishing sexual expression is degrading to adolescents or that it would cause them shame, embarrassment or negatively affect their development, or that the law itself was discriminatory.

But legal scholars Godfrey Kangaude and Mobby Rusere found it wanting. “Even if, for argument’s sake, society thought [teenage sex] was wrong, it may not warrant intervention through criminal sanction.

“One could sympathise with the court, since this was a difficult and political determination to make, but nevertheless, it could have explored the issues a little more in depth than quickly defaulting to protectionist and moral arguments,” they argued.

- The writer is executive editor of Africa data visualiser and explainer site Africapedia.com