Teens, Sex and the Law

Dear TUKUKA,

A distant cousin was recently arrested for having sex with a girl in his neighbourhood. They had been dating and we knew they were in love with each other. My cousin is 17 while the girl is 16 years old. The girl’s parents have insisted that they want the boy jailed because he has ‘ruined’ the girl’s life. I have googled such other cases on the internet and it is often the boy who gets into trouble. Boys are often charged with the crime of defilement and the unlucky ones go to jail for a long time. My issue is, why should the boy go to jail while the girl is protected yet they were both teenagers in love?

Vincent, 15

Dear Vincent,

I sympathise with your cousin’s situation, and the toll it must be taking on you and your family What is happening is both a social issue and a legal issue. Socially, it is argued that sexual activities between teenagers, often leave the girl child suffering the consequences of the act; including unplanned pregnancies and dropping out of school. It is for this reason that the girls are more ‘protected’ than the boys.

Our laws seem to adopt the same mindset, as they safeguard the interests of the child. A child, according to our laws, is any person below the age of 18 years old and the law says that a child is not able to consent to sexual activities. Someone who is found guilty of defiling a child under 11years is sentenced to life imprisonment. If the child is between the age of twelve and fifteen, the guilty offender will be imprisoned for a term not less than twenty years and if the child is between the age of 16 and 18, the offender will be liable to an imprisonment for a term not less than 15 years. Kenyan courts have consequently, sentenced underage boys who engage in sexual intercourse with underage girls, on the grounds that the girls were incapable of consenting to the act based on their age. This is often despite the fact that they are both minors under the law.

However, as late as 2017, the courts seem to be taking a different approach to this issue. In a recent case, the judge held that the boy child should not be imprisoned, but should be placed under probation for a period of 6 months. In this case the boy was 16years old while the girl was 17years old. A situation almost similar to your cousin’s.

The courts are now acknowledging that adolescents who indulge in sex, both ought to be treated as children in need of care and protection rather than imprisoning the boy child, who under the law, is also a child incapable of consenting to sex.

In line with this decision, your cousin being a child under the law, needs counselling and not imprisonment. Together with his girlfriend, they should be educated on the impact that teenage sex on their health and futures. In the meantime, we would advise that his family get help from a children’s lawyer to keep him out of jail.