It is an excellent thing if judges call attention to areas of the law that need reconsideration. But some Kenyans have attacked three Court of Appeal judges who suggested that we look again at the law on sexual intercourse with children under 18.
The Judges said, “A candid national conversation on this sensitive yet important issue implicating the challenges of maturing, morality, autonomy, protection of children and the need for proportionality is long overdue. Our prisons are teeming with young men serving lengthy sentences for having had sexual intercourse with adolescent girls whose consent has been held to be immaterial because they were under 18 years. The wisdom and justice of this unfolding tragedy call for serious interrogation.”
The Sexual Offences Act says it is automatically a crime for anyone, of any age, to have sexual intercourse with a boy or girl under 18, (the only escape being that they did not know the child’s age), and the court must sentence the offender to at least 15 years in prison, if the “victim” was 16 or over.
If the victim was 12-15, the sentence must be at least 20 years. If the victim was under 12, the sentence must be for life. And, by the way, in Kenya, life means life – there is no possibility of remission for good behaviour.
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But the main concern is not with the person who violates an 11-year-old. And we are not talking about the boda boda man who persuades a primary school child to have sex in return for a ride to school, or the father who has sex with his daughter (of any age).
What causes the heart-searching are cases like this: The man who has had a relationship with a young woman who is perhaps 17, who has no wish to disown the relationship; the man does not wish to run away from any responsibilities, indeed often the couple are living together as man and wife, may even have a child whom they are bringing up. Or a boy of 18 who has had a sexual relationship with a girl hardly any younger than him, but under 18.
A court would have no choice but to send each of these to jail for at least 15 years.
But judges don’t like having to behave like automata. If they feel that the compulsory sentence would be unjust in the particular circumstances they have various strategies. Sometimes they have decided that the accused did not know the age of the child – even when this defies the evidence. Sometimes they have found a person guilty of another offence that still has a lower sentence available.
Let’s just focus on the young man who has had sex with a girl. Perhaps he has never been in trouble with the law before. You put him in prison for 15 years. Do you say you are punishing him? For what? He had sex with a girl who seemed perfectly willing, and she was of the age at which his mother married his father. He had no idea this was wrong. Punishment makes little sense for people who had no guilty mind.
What will he learn in prison? Probably how to thieve — from other prisoners. Maybe a useful, if low-level, trade, or even get to take KCSE. But maybe he already had a good trade. These things are for rehabilitation. But he does not need rehabilitating. And he will hardly emerge from prison with a better attitude towards society.
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Retribution then? For what he did to the girl? But she was happy, and now has been robbed of her love, and if she has a child that child has lost paternal care.
Deterrence? Certainly, he won’t be able to offend for up to 15 years. Will it deter others? Not all the other young men who have no idea that this is legally wrong. The truth is that prison sentences do not deter. And the major reason is that people don’t expect to get caught. And most don’t get caught, including those having “illicit” sex.
Denunciation? Society condemns something it has decided is wrong. Basically, it is shifting its responsibility onto the criminal justice system for its own failures. Parents who have no idea their daughter is sleeping with men. Or maybe parents who don’t care so long as the young man pays bride-price. A society in which young girls walk to school alone exposed to the risk of rape or seduction for some tiny sum or a short boda boda ride. Girls who don’t know that sex produces babies, according to some accounts.
What good does prison do? It costs the country Sh200 a day to keep someone in prison That must be an underestimate — how about building maintenance, staff salaries? But even if true it would cost us Sh730,000 to keep someone in prison for 10 years (assuming one-third remission). That person is giving nothing back to society, is highly likely to emerge a damaged person. He left outside others damaged by his absence. And our prisons are grossly overcrowded.
Ages of consent (the age at which you can agree to have sexual intercourse) vary widely across the world. But the big issue for us is the Sexual Offences Act. As a tool of penal policy, it is about as primitive as it is possible to get. You sleep with a girl who is 17 years and 11 months old, you get 15 years. If she is 18 years and 1 month old you’ve done nothing wrong unless it is proved you did it against her will.
INEQUALITY IS UNCONSTITUTIONAL
In my view, it is also unconstitutional. Treating people equally under Article 27 means treating similar situations alike, but also treating people in different situations differently.
To treat the young man who has slept with his girlfriend and is very happy to stay with her, and support any child the same way as a man who forces himself on the same girl is not to treat like alike. Yet a substantial minimum sentence is likely to have that effect.
If a person kills someone else by negligence or reckless behaviour and is convicted of manslaughter, the court may sentence them to any term of imprisonment up to life. In fact, they could impose no sentence or community service or even a fine, though any of these would be unusual.
The point is that the court could consider things like: How careless was the person — how big a risk were they running — and how remorseful are they about the death. The court can make the punishment fit the offender and not only the superficial nature of the crime.
Since the Supreme Court held that a compulsory death sentence for murder was unconstitutional, the courts can (must) engage in a similar exercise of assessing the degree of fault of the person found guilty, their remorse, and even factors like their age and state of health, before sentencing.
But not for “defilement”. Again – unequal treatment.
A CANDID NATIONAL CONVERSATION
The media are sex-saturated. Yet people don’t want to talk about it. But it is essential. Our law is completely unrealistic. Research shows about half of young people have sex before they are 18. The idea that no one under 18 can consent is not a statement of fact, it is a legal fiction.
In reality, plenty of girls will consent. And many young men will find themselves prosecuted, like the one in that Court of Appeal case, not because of what they did but because of some other factor.
It is is not a good thing for young people to have sex, and certainly not for girls to get pregnant. But imposing savage criminal sentences is a way of not addressing problems.
The Court of Appeal is right. This one must be addressed.
By JILL COTTRELL GHAI,
Director, Katiba Institute
This Article was first published by the Star Newspaper on 14th April 2019