The Sexual Offences Act is intended to among others protect children from paedophiles, adults who take undue advantage of the innocent, defenceless and vulnerable children. The question then that keeps showing up like a bad penny is, what about children who, on their own agree to have sex? Should they be penalised?
Recently, the issue found itself in an Eldoret Court. CWK vs. Attorney General & Another (2014) eKLR is a case involving two children, both 16 years of age, “lovers” who allegedly engaged in consensual sexual act. Being the boy’s girlfriend, the girl had gone to the boy’s house and had a “good time”. Thereafter, a complaint was filed against the boy for defiling a child. Under Kenyan law, a child is a person under eighteen years of age.
In Kenya, age of consent is 18 years although statistics show that children start having sex as early as 12 years, and child pregnancies are not uncommon either.
In most American states, the consent age is 16 years. At 16, most children have attained basic education and in some instances they are already in college, they make conscious decisions every day affecting their lives such as subject choices in school, career choices and may be issued with driving licenses. In Kenya, however, they cannot vote or make decisions on their sexuality. This is beside the point.
In this case, having been charged in court, the boy filed a constitutional petition challenging the constitutionality of Section 8 and 11 of the Sexual Offences Act to the extent that it criminalises consensual sexual conduct between children. The petition also faulted the fact that the boy was charged and the girl left scot free despite both being children of the same age, arguing discriminative nature of the law and its application.
The boy also urged the court to find out the sections of law are inconsistent with the rights of children under the constitution and the best interest of the child principle.
These sections are not clear whether children should be criminally liable for consensual sex. While the Court (Justice Fred Ochieng) did not declare the law unconstitutional, it held that indeed if adolescents have consensual sex, they commit an offence and they should be charged under Sexual Offences Act. In his own words the judge says:
“There is no legal bar to the prosecution preferring criminal charges against both the children. In effect, if the prosecution had reasonable cause to charge both minors, they could do so… The law protects adolescents from the harmful sexual conduct whether such conduct was directed at them by adults or by other adolescents…if anything, I do find that the provisions of law, which are in issue, are aimed at achieving a worthy or important societal goal of protecting children from engaging in premature sexual conduct.”
In effect, therefore, sex among kids is a criminal act and both children may be charged it court under the Sexual Offences Act. In his obiter dicta, however, the judge said that there ought to be better ways of dealing with pre-mature sexual behaviour between children, other than imposing a criminal sanction. He did not, however, address the all-important question of whether children are capable of consenting between and among themselves.
The may be accepted societal norm, that children should not be engaged in irresponsible and premature sex. It may expose them to some behavioural risks. Criminalising the consensual sex among children, however, is not the best way of dealing with the social problem; there are less restrictive ways in which the society can help children make good decisions.
Children are just that: children, during adolescence; there are always developmental challenges, explorations and discovery of their bodies and sexuality. At this stage, they ought to be guided and protected but not condemned for doing what would otherwise be normal. In dealing with child matters, the law provides that all decisions to be informed by the best interest of the child principle.
South Africa’s Sexual Offences Act is largely similar to Kenya’s although the former is more elaborate. The South African law criminalised consensual sex between adolescents and expressly provided that should adolescent children have sex, they are both (the boy and the girl) criminally liable, they should both be arrested and prosecuted. This would later be challenged in court.
In Teddy Bear Clinic for Abused Children & Another vs. Minister of Justice and Constitutional Development & Another (CCT 12/13)  ZACC, the petitioners argued that criminalising sexual conduct among children violates the child’s human dignity, right to privacy and the best interest of the child principle.
The South African Constitutional Court considered the provisions of the law and the social factor of whether criminalizing early sexual intimacy among children would deter risks associated with premature sex. In declaring the law invalid and failing to pass the constitutional muster, the court rendered itself as follows:
“It cannot be doubted that the criminalisation of consensual sexual conduct is a form of stigmatisation, which is degrading and invasive. In the circumstances of this case, the human dignity of the adolescents targeted by the impugned provisions is clearly infringed. If one’s consensual sexual choices are not respected by society but are criminalised, one’s innate sense of self-worth will inevitably be diminished.”
The South African Court also found that there are less restrictive means to protect children that don’t involve passing laws that condemn them as criminals. Criminalisation of consensual sex among children in order to protect them was found to be disproportionate for the law “does not permit a sledgehammer to be used to crack a nut”. To this end, the learned Justice Khampepe writing the lead opinion of the court ruled:
In any event, I am highly doubtful that the introduction of criminal prohibitions could ever be shown to be constitutionally sound means of preventing the occurrence of such risks as teenage pregnancy… Moreover, on the basis of the expert report [report presented to court by renowned child psychiatrist, Prof. Alan Flisher of University of Capetown] I am persuaded that there are various methods of the state could use that do not involve criminalization of consensual sexual conduct between adolescents in order to encourage them to lead healthy and responsible sexual lives.”
Justice Ochieng did not agree with the reasoning of the South African Constitutional Court, and he strenuously distinguished it. The South African court was more forthright and practical that other measures such as parental guidance and education are more useful than criminal sanctions. The Kenyan court took more of catechism perspective that the law should be used to cure this moral issue among the children. Justice Ochieng however invited experts to study child behaviour in Kenya in view of informing legislation and policy.
The Sexual Offences Act also needs to be reconsidered and redrafted in light of the issues raised above.^ (ilaw)