Should boys aged 17 and below serve lengthy jail terms for having sexual relations with their female age mates?
This is the question confronting many magistrates presiding over trials of underage boys charged with defiling their equally underage girlfriends.
The number of underage boys held in borstal institutions as remandees or after they were jailed for defiling girls aged 14-17 is on the rise.
The Sexual Offences Act (SOA) of 2006 imposes a jail term of not less than 15 years for anyone found guilty of defiling a child in that age bracket.
Affairs among teenagers are on the rise and male teens are the ones being taken to courts.
Senior Resident Magistrate Lewis Gatheru of Makadara Law Courts in July dismissed a case against a 17-year-old boy charged with defiling his 16-year-old girlfriend in Huruma estate in Nairobi.
Gatheru said both are children in need of care and protection. But a 17-year-old Form Three student, who was also charged before Makadara Law Courts, was not as lucky.
He was charged with defiling his 14-year-old girlfriend who sneaked in for a sleepover in Korogocho slums, Nairobi.
The boy reportedly committed the offence on June 20, 2020, in a house where he sleeps with his younger brother.
The two teenagers had reportedly met hours before to plan their night escapade.
The girl’s brother discovered she was missing from their house at 3am and informed the parents.
The two were later caught in bed at around 5am. The suspect is still on trial but Chief Magistrate Heston Nyaga released him on lenient bond terms.
Lawyer Irene Ndegwa faults the law that anticipated that only adults would commit such offences and set punitive sentences when the drafters stated “anyone” which she said is “unfairly targeting boy-child” as there is no way a female child can be charged with defilement.
She said the parliamentarians protected themselves (men) very well in the Act by ruling out marital rape through a clause that states “it is not an offence to coerce someone into a sexual act by using force or threat of harm if you are legally married to that person.”
“But they forgot that their sons and nephews would be victims because there is no way a female child can be charged with defilement. Now a 15, 16 or 17-year-old boy risks being listed as a dangerous criminal by the Directorate of Criminal Investigations (DCI) as provided for by the Act,” Ms Ndegwa said.
The Act states that anyone convicted of any offence in the Act shall be listed by the DCI boss as a dangerous criminal.
Ndegwa says the law imposes hefty criminal consequences on young people who act out of ignorance.
For instance, POO, a 16-year-old boy in Homa Bay, was charged in 2016 with defiling his 16-year-old girlfriend.
POO was arrested on February 14, 2016, and charged at Mbita Senior Resident Magistrate’s court with the offence of defilement the next day.
He faced an alternative charge of committing an indecent act with a child contrary to Section 11(1) of the same Act. He had met the complainant in church.
The minor was hauled through the criminal justice system until he was set free by Justice Hellen Omondi on August 17, 2017, after a successful petition to quash the charges against him on grounds of discrimination.
Through his lawyer, POO submitted that, although there cannot be consensual sexual intercourse between minors, and as much as the male genital is the one that penetrates the female, it is discriminatory to charge the male minor and leave the female minor, in an instance where none claims to have been forced into the intercourse.
“… The underlying principle is that the criminal justice system should take account of a defendant’s age, level of maturity, and emotional capacity. It is only by doing so that the system can redress the imbalance, which is the inevitable result where a child or young person is confronted by the power of criminal justice,” the lawyer stated.
Justice Omondi agreed with POO and terminated his prosecution, and awarded him Sh200,000 as damages for violation of his rights.
A city magistrate who did not wish to be named because she is not authorised to speak to the media said there is a dilemma in dealing with the cases of “Romeos and Juliets” (love-struck youngsters).
She says Romeos – both teenagers and young adults – are wrongly blamed for everything that happens in the affairs although the shreds of the crime are equally spread on both and the law is blind to the fact that the Juliets are never offended in such affairs.
“I can’t give less than a life sentence for a person convicted of defiling a girl below 12 years. The ruling on the Muruatetu case lifted the mandatory sentences but there is no guidance on the limits of the discretion or alternatives so that we know the least penalty we can pass,” she said.
“You may feel three years’ of community service is an appropriate sentence but you fear the sentence could be perceived ridiculous among critics if compared to what the SOA provides for, therefore the necessity of guidance when making determinations to avoid criticism.”
Ndegwa and a female High Court judge who did not wish to be named said the remedy for the boy-child lies with the office of the Director of Public Prosecutions (DPP) and the Judiciary because the legislators will never provide a solution.
The two argued that the prosecution of the offenders in such cases should not be mandatory.
Ndegwa said the DPP should use the diversion (alternative resolution) instead of criminal charges and defilement should be established first and identify the victim in the case.
“The suggestion to lower the majority age to 16 (years) was met by a lot of criticism from the civil society groups. It is an emotional issue because of the society’s perceptions that it will expose young girls to early marriages and reverse gains made by the SOA in protecting the girl-child but the boy-child is subjected to undue punishments,” said Ms Ndegwa.
“Unfortunately, Parliament is not expected to offer any solution to the problems because none will want to be seen taking unpopular positions and children don’t count in politics.”
The judge said the law should protect the minor and taking the male minors through the criminal justice system denies them that protection.
She said the judicial officers should evaluate the circumstances and determine the culpability of the alleged perpetrator and victims regardless of gender.
The lawyer said the trial magistrates are looking at the age gap between the victims and the alleged perpetrators to establish who the victim is in the case, to be able to protect children from people who are below 18 years.
“Because you can’t expect a girl of 12 years or below to be in a relationship with a 17-year-old. If you interrogate the victim and complainant, you will know whether there was a relationship or not and the circumstances under which it happened,” she said.
“There are those below 17 years forcing themselves on younger victims and this is what is punishable. You need to find out whether there was a mutual agreement between the two. If it is a case of Romeos and Juliets, criminal charges against both or any of them would be a wrong approach,” she said.
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