What happens when minors engage in consensual sex in Kenya? In a landmark ruling High Court Judge James Makau has ruled that in such case both the girl and boy should be charged with defilement.
The judge made the finding in an appeal where a 16-year-old primary school boy had been sentenced to 15 years jail sentence for defiling a 17-year-old girl.
The judge termed the sentence as discriminatory as the magistrate had issued a 15 year imprisonment to the boy, yet they were both minors and could not legally under Kenyan law, consent to sex.
He further pointed out since the girl was older than the boy, the blame should have been equally apportioned and both charged with defiling each other.
“I find that the appellant was discriminated against on the basis of gender in that he was arrested and charged instead of the prosecution charging both the complainant and the appellant for the offence of defilement,” said Justice Makau.
The boy was charged with the offence in October last year. He also faced an alternative charge of committing an indecent act with a child.
According to court records, the charge happened for three days between October 18 and October 21 last year. After the charge, the boy admitted to having sex with the girl and the magistrate slapped him with 15-year sentence on his own plea of guilty.
The state conceded to his appeal as the Standard seven pupil complained of being intimidated and confused during the reading at a lower court.
The judge said it was illegal to condemn the boy, adding that both the accused and the complainant ought to have indeed been placed under counseling to change their behavior
‘’It is an illegal sentence, and should not have been imposed against the appellant at all. I find no justification of the trial court in imposing a sentence against the appellant to serve 15 years for an offence of defiling a girl who was is older than the appellant as she was 17 years old”
The judge squashed the sentence and ordered that the boy be placed under probation for 6 months. By the time of release, he had already spent 6 months in prison.
According to data at Milimani Children Courts, 41 cases of sexual offences by minors were registered between 2012 and 2015. Child Helpline had 116 cases with 30 girls under 18 years confessing to being abused by their brothers. The court registers showed that 2015 had the largest number of recorded defilement cases.
There has been calls to amend the age of consent from 18 years to 16 .
Source: The Standard