The age of consent

Sex with a person below the “age of consent” is automatically a crime, regardless of whether the person in fact agreed.

In most cultures, historically children could marry. Often the age of marriage was related to puberty. Legal “ages of consent” rose as the idea of “childhood” and of the need for extended period of training to be a full adult developed. In the nineteenth century a realisation of the extent of childhood prostitution propelled an increase in the age of consent. And the sanctification of a woman’s virginity (to lose which while not being married was a “fate worse than death”) played a part. Gradually the concept that a woman had a role in life not restricted to that of wife and mother took hold. And more recently we have come to realise the damage that is done to girls who become pregnant while their bodies are immature.

A very common “age of consent” is 16, including in South Africa, though in some countries (and some US states) it has been raised to 18, while some countries still have a lower age.

Current controversies

Under the Sexual Offences Act, being convicted of having sex with a person under 18 leads to a sentence of at least 15 years (more if the child was under 16). Recent concerns centre on two issues. The first is what sometimes seem very harsh minimum sentences (some courts go to considerable lengths to avoid convicting men of defilement, or even misapply the law by giving lower sentences).

The second issue is the number of young men locked up for having sexual relations with girls. Often it seems that the relationship was by agreement, perhaps even of the girl’s parents. Sometimes there is a child, and the young couple had planned to set up home together. The only possible defence in court is that the girl actively deceived the man that she was over 18, and that he actually believed her. So they must have known that 18 is an important age and addressed the issue. There is no defence for a young couple who had no idea that they were breaking the law.

The Judiciary’s recent task force on sentencing commented that “it is clear that the provisions of the Sexual Offences Act are being used to unduly and excessively punish young offenders who end up bearing the brunt of consensual conduct.”

So, many young men are having their lives ruined (and how else can we describe the fate of a kid of 18 who is sent to prison for 15 years, to be educated in crime, and not to be released until at least ten years have passed?) because they have had sex with a perfectly willing girlfriend.

At the same time the girls are often being abandoned just when they thought they were settling down —perhaps with the father of their child. And babies are being deprived of paternal care, and the number of single mothers increased.

The social problems

Of course there are evils to be prevented and punished. It is deeply sad that many girls are dropping out of school because they are pregnant. That girls in their teens are suffering from sexual violence. That children on their way to school are forced into sexual relations or bribed with a few shillings to agree to sex, or even forced into sex by their teachers.

What do we do to prevent it? Do we educate girls about pregnancy and how to avoid it, or help them achieve the self-confidence to say “No”? Do we give the girls an alternative view of their futures? Some clearly have such a vision including the brave ones who refuse FGM against their parents’ wishes. But what about those who are failing to get into secondary school at all, because of their KCPE results or lack of funds, despite the Constitution that says “Everyone has the right to education” and the Basic Education Act?

We tell them that “We can’t guarantee you a place in secondary school so you have to leave at 15. You can work for a living (and of course pay taxes if you earn enough). But you can’t get married and if you have sex, however willing you were, the young fellow risks going to prison for a long time.”

The law was conceived on the assumption that sex with a girl under 18 involved some dirty old man taking advantage—or worse— of an innocent, unwilling girl. Life—and sex—is much more complex than that. But at present we seem unable to discriminate between the dirty old man and the over-enthusiastic youngster. So the latter gets subjected to the treatment designed for the former, and the girl may be dragged before the courts as witness.

Addressing the problems

Let’s be realistic about proposals to reduce the “age of consent” to 16. The law could say that a man who has sex with a girl of that age commits a criminal offence unless he can prove that she consented. Alternatively it could be treated like rape of a person over 18: it is a crime if it can be proved that the girl did not consent or her apparent “consent” was forced. No-one is proposing that there should be no protection for 16-18 year olds against unwanted sex.

There is perhaps some lack of logic in saying “you can have sex but you can’t marry”. But I am not convinced that arguments in favour of allowing sexual intercourse between consenting over 16-year-olds necessarily have the corollary that they should be allowed to marry. Let’s face it, such intercourse happens all the time. Maybe it is against religious beliefs, but it is not the job of the criminal law to enforce morality, but penalise harmful conduct.

There are other approaches. FIDA says it actually proposed a “Romeo and Juliet law”. Juliet was 14 (remember Shakespeare?). Such a law (found in Canada and many US states, and South Africa) means that if the couple was young (so no dirty old men) the age of consent is lowered. For example, even a girl of 12-13 could consent to sex with a boy only 1 or 2 years older. And a 14-15 year old could consent to sex with a young person up to 5 years older.

Some countries have a general age of consent of 16, but raise it to 18 if the man is in a position of trust (like a teacher). There might be a case for a higher age (how easy is it for a university student to refuse sex with a lecturer?).

The South African Constitutional Court held that a minimum sentence for a young person under 18 is unconstitutional – leaving the court to adjust the sentence to the facts. This was on the basis that their Constitution says that a child must be detained only as a measure of last resort, and only for the shortest appropriate period of time. Our constitution has a similar provision. This would not be a complete solution of course. The young man would still be convicted, and be on a register of sex offenders. And it would not help the 20 year old. Anyway no constitutional challenge to this law has yet been successful in a Kenyan court.

But Justice Ochieng did wonder, “whether or not there are other measures … more appropriate and desirable, for dealing with children, without having to resort to criminal proceedings”.

This raises the question: why does the Director of Public Prosecutions prosecute these cases? No-one else can tell the DPP what cases to prosecute or not, but they have a discretion. The Crown Prosecution Service in England says, for example, “children of the same or similar age are highly unlikely to be prosecuted for engaging in sexual activity, where the activity is mutually agreed and there is no abuse or exploitation.”

Jill Cottrell Ghai – Director, Katiba Institute