A High Court ruling in Malindi sparked controversy on whether minors can consent to sex.

Prior to this case, the prosecution had charged the appellant with the offence of defilement contrary to Section 8(1) (3) of the Sexual Offences Act. The particulars were that the appellant intentionally and unlawfully caused penetration of his genital organ into the genital organ of a girl aged 13 years. This happened on diverse dates between 2nd December 2011 and 3rd January 2012 at an area in Kilifi County.

The trial court convicted the appellant and sentenced him to serve twenty years in prison.

The person, hereto referred as the appellant, petitioned the case at the High Court in Malindi. The prosecution based their case on the narration by the female victim. They then determined that the appellant defiled her based on that evidence. At the time, the girl was fourteen years old and a class six pupil. The girl’s brother also confirmed he saw the appellant having sex with the girl by peeping through the window.

The presiding Judge Juma Said Chitembwe listened to the evidence brought forward by the appellant and the prosecution. He ruled that, among other reasons, the girl “behaved like an adult” and the evidence did not prove the appellant defiled her.

Judge Chitembwe said that it would be unreasonable for the appellant to serve the 20-year sentence. He set him free. The office of the Director of Public Prosecutions (ODPP) appealed the case at the Court of Appeal.

Minors consent to sex according to Chitembwe’s ruling

This ruling by Judge Chitembwe caused a storm both in public and in the legal world. The judge implied that minors could consent to sex because the girl “behaved as an adult” and “enjoyed the relationship. At the time the offence took place, the offender was 24 years of age.

The judge went on to give examples of countries that had raised their age of consent from 13 years to 16 years due to public pressure. In Kenya, the age of consent is 18 years.

See Also: Why sex education is important for children in Kenya

The judge further said that the burden of proof to determine the girl’s age does not lie with the appellant.

Sexual consent among teenagers

Some loopholes exist in the laws on sexual offences that require quick action. They relate to the issue of teenagers’ consent to sex. That is, when minors have sex with each other.

One article stated that the boy always finds himself disadvantaged even when both parties (boy and girl) claim the sex was consensual.

“The teens think so (they can consent to sex), the law says no.”

The article passed the blame to the girl’s parents. The parents often coerce the girl to lodge a case of defilement in court, when the girl already admitted the sex was consensual. The courts could determine that one party lodging a case of defilement against the other meant that the sex was not consensual. However, the other party still faced defilement charges when the minor did not complain.

“This is where Kenyan boys are having it rough.”

In another article, lawyers defending teenage boys against such allegations said that the law against defilement was discriminatory. A lawyer representing one of the boys charged with defilement, despite the sex being consensual, argued about this. He says that trying and convicting the boy alone amounts to selective judgment.

This violates Article 27 of the Constitution on equality and freedom from discrimination.

Judge Chitembwe’s case was an injustice

Judge Chitembwe ruled that children are not meant to enjoy sexual intercourse. “Whenever they do, then that becomes the behaviour of an adult,” says Judge Chitembwe.

“…Conviction of a defiler should be based on actual circumstances and proof that the complainant was indeed defiled. This is more so when one considers the lengthy sentences imposed by the law for such an offence.”

This case failed to prove that the appellant engaged in statutory rape with the minor. Hence, the judge set him free. However, the basis of argument the judge relied upon was outright misleading and outrageous.

The judge seemed to endorse defilement of minors. The Sexual Offences Act is explicitly clear that minors CANNOT CONSENT to sex. The law classifies sex with a minor as defilement. If it is sex with a child below puberty, then that becomes a more serious crime of molestation. For an adult, it is rape.

In this case, the sex with a minor is also statutory rape. Statutory rape is sex with a minor or sex with someone below the age of consent. Some countries like Ireland have either declared the laws on statutory rape unconstitutional or reviewed them.

The argument whether the age of consent in Kenya should go down from 18 years to 16 years still brings a lot of controversy. It was a source of heated debate recently when it was introduced in parliament and it had to be shelved.

The ruling by Judge Chitembwe caught the attention of the Gender Justice Uncovered Awards. The awards recognize the best and worst court rulings on gender equality from all over the world. Chitembwe’s verdict was voted the worst in the world. It received the Golden Bludgeon award by Women’s Link Worldwide, an international organization of women in the field of law.