By JILL COTTRELL GHAI

The Star rightly [Leader March 28th] expressed concern about the man who escaped conviction for defilement a thirteen-year-old by convincing the court that the girl had enjoyed the experience, and had deceived him that she was eighteen.

Her enjoyment, even if real, is irrelevant. In the case of an adult woman victim, rape or not depends on consent. In the case of a child, defilement involves penetration of the sexual organ of a child, whether or not the child consents. The prosecution does not have to prove the child did not consent; the accused person would achieve nothing by proving the child consented.

The question of believing the girl was eighteen is different. The Sexual Offences Act provides a defence – if the man can prove the girl actively did something to deceive him about her age, if he actually believed her, and if believing her was reasonable. In deciding whether he was reasonable, the court must look at all the circumstances, including whether he tried to find out how old she was.

One has to wonder how many 13-year-olds can convince a man who genuinely wants to know the truth that she is eighteen. In this case it would presumably have been easy to confirm her age, as they met at a funeral. And her parents were aware of their relationship.

Some courts – including the judge in this case, Justice Said Chitembwe – are quite commonly circumventing the clear language of the Act, and are not insisting that the accused man proves the defence. In a 2013 case, Justice Chitembwe seemed to accept that the man did not believe that the girl was over 18 but, “In this age where young girls are maturing fast and engage in sex knowingly and being aware of consequences, it will be unfair to sentence the boyfriend to 15 years imprisonment yet the two parties were aware of what they were doing.”

In 2012 the same judge decided that a man had proved the defence about being deceived when he clearly had not. The judge’s main concern was, he said, “whether the appellant is a criminal who deserves punishment”.

The Court of Appeal said last year, “We also cannot appreciate what other steps the appellant could have taken to ascertain that the complainant was over eighteen years when the complainant herself had said so and had conducted herself like one aged over eighteen years.” That girl was 16. “Conducting herself like one aged over eighteen years” seems to mean she had had intercourse before, and was willing.

In other cases the courts are firmly applying the law as written. So the law, as applied, is very unpredictable. It may depend which judge you get.

There are very good reasons for trying to prevent girls marrying while they are still children – in terms of their health, and of their future career prospects and personal autonomy. In accordance with the African Charter on the Rights and Welfare of the Child, the Constitution and Kenyan law fixes childhood as under 18, and bans child marriage.

But is not educating young people about the risks and reasons better than criminalising every act of intercourse with a girl under that age?

Perhaps the real problem in the judges’ eyes is the sentence. In the recent case, if that man had been convicted the court would have had to sentence him to at least 20 years in prison. If the girl had been between 16 and 18 the minimum would have been fifteen years (and if under 12, life). The court has no ability to adapt the sentence to the justice of the particular case. The time may have come to challenge the law as requiring in some cases cruel and inhuman punishment (which the Constitution does not allow).

If judges have no choice but to impose a sentence they think is unfair they may resort to strained interpretations of the law to find people not guilty. In the process of avoiding what they see as an injustice they may cause another, such as allowing a man who takes advantage of a 13-year-old girl to go scot-free.