THE JUDICIARY AND UNDERAGE SEX
Sex with a minor, under 18 has always been a dicey topic but Criminal Appeal 32 of 2015 shows just how far we have to go
http://kenyalaw.org/caselaw/cases/view/121219/
"It is true that under the Sexual Offences Act, a child below 18 years old cannot give consent to sexual intercourse. However, where the child behaves like an adult and willingly sneaks into men's houses for purposes of having sex, the court ought to treat such a child as a grown up who knows what she is doing. The appellant was 23 years old when the incident occurred as per the pre bail report. It would be unfair to have the appellant serve 20 years behind bars yet PW1 was after sex from him. The evidence does not show that the appellant knew that PW1was a student or that the appellant took advantage of PW1 being a young girl. It is clear to me that PW1 started engaging in sex way before that date. It is possible that PW3 saw his sister enjoying sex with the appellant at 1.00 am."
This judgement is appaling from beginning to end. I was mortified
listening to dis (honourable)Chitembwe's line of reasoning. How is he in
the judiciary? Fossils should be somewhere in a musty room on display
not issuing rulings in our courts. Given the option he would probably
change the age of consent to 10 and age of marriage to 12,with or
without parental consent.
"It's one of the least justifiable legal double standards I've seen. He uses textualism of other countries criminal codes to formulate his judgement and yet conveniently avoids the constitution that he's sworn to uphold. And not enough can be said about the disgusting endorsement of hebephilia, it should never have been turned into a legal precedent. It's abhorrent."- Allan Kameme
Not all defilement cases are equal and they should be judged independently. However :
1. The assumption made through the ruling that women commonly make up defilement cases as a means of settling scores is already sexist in nature. That's an already formed attitude before listening to the case and it's a dangerous and misinformed generalisation to make.
2. The age difference. A reasonable age difference between parties is usually justifiable e.g a 19 year old with a few 17 year old girlfriend. A 10 year age difference is not in the least acceptable.
3. Her age. A 14 year old girl is not able to give sexual consent. Stating scrapped consent laws from countries we don't borrow from does not make his point,at all. His insistence on going everywhere else apart from the Kenyan law, which isn't in line with his ruling and which he swore to protect is also rather telling.
4. The ignorance of power dynamics involved in the sexual relationship
5. The fact that the man was absolved of all responsibility in this instance of reasonable knowledge that she was a primary school girl. It would be reasonable to expect him to take the minimal possible steps like asking her age but the judge doesn't feel like he had to
6. His assumption that she was coming back because she enjoyed it and that's what her brother witnessed is abhorrent. There are clear laws on consent. Consent laws were created in acknowledgement of power dynamics, maturity and development limitations through age and this is a clear case of victim-blaming by the judge.
"It's one of the least justifiable legal double standards I've seen. He uses textualism of other countries criminal codes to formulate his judgement and yet conveniently avoids the constitution that he's sworn to uphold. And not enough can be said about the disgusting endorsement of hebephilia, it should never have been turned into a legal precedent. It's abhorrent."- Allan Kameme
Not all defilement cases are equal and they should be judged independently. However :
1. The assumption made through the ruling that women commonly make up defilement cases as a means of settling scores is already sexist in nature. That's an already formed attitude before listening to the case and it's a dangerous and misinformed generalisation to make.
2. The age difference. A reasonable age difference between parties is usually justifiable e.g a 19 year old with a few 17 year old girlfriend. A 10 year age difference is not in the least acceptable.
3. Her age. A 14 year old girl is not able to give sexual consent. Stating scrapped consent laws from countries we don't borrow from does not make his point,at all. His insistence on going everywhere else apart from the Kenyan law, which isn't in line with his ruling and which he swore to protect is also rather telling.
4. The ignorance of power dynamics involved in the sexual relationship
5. The fact that the man was absolved of all responsibility in this instance of reasonable knowledge that she was a primary school girl. It would be reasonable to expect him to take the minimal possible steps like asking her age but the judge doesn't feel like he had to
6. His assumption that she was coming back because she enjoyed it and that's what her brother witnessed is abhorrent. There are clear laws on consent. Consent laws were created in acknowledgement of power dynamics, maturity and development limitations through age and this is a clear case of victim-blaming by the judge.
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