The difficult conundrum on consent in sexual offences: The place of consent and the emerging issues on consent in sexual offences in Kenya

Legal framework

Women and men alike enjoy equal protection by the law. It is worth noting that both men and women are affected by sexual violence but women experience such abuses in a higher magnitude. In the past, sexual offences were covered by the Penal Code. With time, parliament saw the seriousness with which sexual offences have and came up with the Sexual Offences Act, 2006. The Sexual Offences Act is a massive upgrade from what was provided for in the Penal Code. It not only provides for minimum sentences but also increases the scope of offences. The Penal Code provides only maximum sentences. This provided judges and magistrates with extremely high discretion which could be subject to abuse. The Sexual Offences Act has introduced new offences such as gang rape.

Sexual offences have high standards of proof that must be met. Sexual offences like any other crime must be proved beyond reasonable doubt for an accused person to be held liable. This is based on the fact that they are accompanied with extremely high punishments. As Benjamin Franklin stated that it is better ten guilty Persons should escape than that one innocent Person should suffer conviction. The burden of proof is on the prosecution who have to satisfy the court that the accused is guilty. Failure by the prosecution to prove its case leaves the court with no option but to grant the accused person his/her freedom. There is need therefore to ensure that the prosecution is doing their task effectively. They need to be empowered adequately so that perpetrators of sexual offences are not roaming freely hence further risking other people who may end up as their victims.

The Constitution of Kenya acts as the basis from which all other legal documents such as statutes derive their validity. Sexual Offences Act was put in place by parliament by virtue that it is consistent with the constitution. Article 2(4) of the constitution of Kenya provides that all laws including customary laws that are inconsistent with the Constitution are void to the extent of their inconsistencies.[1] The supremacy of the constitution is underscored by article 2(1) of The Constitution of Kenya, 2010.[2] Therefore cultural practices and traditions that are harmful to human life like female genital mutilation are acts of sexual violence and consequently criminal offences. Parliament in its wisdom came up with the Prohibition of Female Genital Mutilation Act, 2011 to curb this crime. Customary practices are also subject to repugnancy clause. Section 3(2) of the Judicature act provides in part that courts shall be guided by African customary law in civil cases in which one or more of the parties is subject to it or affected by it, so far as it is applicable and is not repugnant to justice and morality or inconsistent with any written law, and shall decide all such cases according to substantial justice without undue regard to technicalities of procedure and without undue delay.[3] Female Genital Mutilation is inconsistent with provisions of Prohibition of Female Genital Mutilation Act, 2011 hence perpetrators should be subjected to legal sanctions regardless of whether their victims consented to the acts.

The Constitution of Kenya guarantees each and everyone equal protection. Every person is equal before the eyes of the law and should be subject to equal treatment. Therefore, perpetrators should be brought forth to face the legal consequences of their actions regardless of their gender, political and economic standings in the society. The Constitution of Kenya expressly state that every person has inherent dignity which ought to be respected and protected.[4] Arguably the right to dignity provides the basis upon which other rights are derived. Sexual violence on the other hand, reaps the victims of this key and essential right. It is worth noting that other people have lost their lives from rape. This is outright violation of article 26(3) of the Constitution which provides that a person shall not be deprived of life intentionally unless express exceptions exist.[5] Furthermore, sexual violence violates the rights to the freedom of the security of the person which provides that nobody should be subjected to any form of violence from either public or private sources.[6]

International treaties and conventions are applicable in Kenya by virtue of article 2 of the constitution. Article 2(5) of the Constitution of Kenya, 2010 provides that the general rules of international law shall form part of the law of Kenya. Article 2(6) of the constitution provides that any treaty ratified by Kenya shall form part of the law of Kenya. Without putting a lot of emphasis on the monist versus dualist debates, we recognize the fact that international instruments are applicable in Kenya. The Convention on the Elimination of All Forms of Discrimination Against Women emphasizes the point that men and women are equal hence there is no need to treat women differently because of their gender. To that extent, the convention intends to establish a regime whereby gender-based violence is non-existent. Kenya as a signatory should do the due diligence and comply unconditionally.

Consent

Consent is an agreement between participants to participate in sexual activity.[7] Consent should be expressed openly and unambiguously. Absence of consent is an essential element in most defilement cases and we intend to thoroughly demonstrate that later in this article. There are some basic requirements that must be fulfilled for the absence of consent to be proved. It is worth noting that only an adult of sound mind can consent to sexual intercourse. Therefore, a child cannot consent to sexual intercourse. Article 260 of the constitution of Kenya, 2010 defines a child as an individual who has not attained the age of eighteen years.[8] In Kenya the age of majority is eighteen years. The Children’s Act provides the meaning of the word ‘child’ to mean anyone below the age of 18 years.[9]  In recent years there have been constant efforts to lower the age of the majority to sixteen years. These efforts have been rendered futile up to date. Likewise, mentally ill people cannot give consent since they lack the capacity to know what they are permitting. A drunken person is treated like a mentally ill person in so far as consent is concerned. Consent cannot be given by individuals who are asleep or unconscious.[10] Because it was not freely provided, consent is not accepted if someone agrees to take part in an action under threat or coercion. Unequal power dynamics, such as engaging in sexual activity with an employee or student, also mean that consent cannot be freely given.[11]

There are different kinds of consent. Consent can either be given expressly or impliedly in addition to informed consent. Express consent is understood to be assent that has been made known and manifestly understood. While informed consent is a person’s agreement to allow something to happen after being fully informed of all the risks and available options, implied consent is assent that is inferred from one’s behaviour rather than a direct expression. The cardinal rule in so far as consent is concerned is that an answer apart from yes is a no. Previous consent cannot be relied upon to argue that consent has been granted in subsequent cases.

The role of consent in sexual offences cases

Consent plays an important role in most of the sexual offences cases more so when the act involves adults; this is mainly because minors are exempted by the law on matters consensual sex. It is therefore clear that there are sexual offences where the prosecution is not required to establish whether the other party consented to the act. Examples include: attempted rape, gang rape, sexual assault, indecent acts and bestiality where the perpetrator cannot claim to have obtained consent from an animal. Consent therefore plays a key role in determining the criminal liability of the alleged perpetrator depending on the nature of the sexual offence committed.

The role of consent in defilement cases

Defilement is the commission of an act that causes penetration with a child.[12] It is trite law that minors are incapable of consenting to any sexual activity. Defilement cases do not require the prosecutor to prove that consent was not obtained as it is not a requirement. What is required is proof that the complainant is a minor. In Hadson Ali Mwachongo V Republic [2016] eKLR the court stated that it is not in doubt that the age of the victim is an essential ingredient of the offence of defilement and forms an important part of the charge because the prescribed sentence is dependent on the age of the victim.

 Most judges in deciding defilement cases view them to be those of strict liability that do not even require the mens rea for one to be held liable; all that is required is the intent to commit the offence.[13] This was applied in the case CKW V AG & another where the petitioner a 16-year old minor had been charged for defiling a fellow 16-year old girl; he claimed that the girl had consented to the sexual intercourse. The court, however, stated that once a person committed an act that causes penetration with a child, the person has already committed the offence of defilement.[14] Therefore, whether the child had consented or not was immaterial.

The role of consent in rape cases

Rape is defined by the Sexual Offences Act, 2006 to mean the intentional and unlawful act that causes penetration with one’s genital organs without the other persons consent or if there is consent, it has been obtained by force or by means of threats or intimidation of any kind.[15] The main elements for the offence of rape are commission of the intentional and unlawful act that causes penetration with the genital organs and the absence of consent of the victim. Consent is therefore an essential element in the determination of a rape case. Consent is therefore equated to mens rea in rape cases. The court of Appeal in R V Oyier stated that the mens rea is the intention and not the state of mind.

There is also the aspect of withdrawal of consent which leads to the commission of rape. The victim may withdraw consent that had initially been given at the beginning of the act. Consent can be withdrawn at any time. Once consent has been withdrawn, the acts that are done afterward amount to rape.

Marital rape is a sexual offence that has been thrown under the bus and is hardly given attention. Marital rape can be defined as unwanted sexual penetration by the husband or contact with the genitals that is the result of actual or threatened physical force or when the wife is unable to give affirmative consent.[16] Though under marital rape it is clear that consent is very important in the determination of the offence, Kenya has no legal protection for rape within marriages as indicated in section 43(5) of Sexual Offences Act.[17] This provision expressly provides that the section does not apply in respect of persons who are lawfully married to each other. As a matter of fact, many still confuse marital rape and denial of conjugal rights as a ground for the dissolution of a marriage. The Declaration on the Elimination of Violence against Women of 1993 reclassified sexual crimes and criminalized marital rape.[18] It is absurd that Kenya has failed to criminalize marital rape yet it is a member of the United Nations.

The role of consent in incest cases

Incest is an act which causes penetration with a person who is to their knowledge, a relative as provided for by the Sexual Offences Act.[19]  Consent does not play a key role in the conviction of incest perpetrators , this is simply because the prosecution in these cases needs to prove the accused and the victim are indeed relatives and that there was penetration or an indecent act committed by either of them. So once the court is satisfied that both parties to the act are within the prohibited degree of consanguinity or affinity then a conviction of incest will be entered regardless of whether or not there was consent.[20]

Emerging issues on consent in sexual offences cases

Several issues have emerged concerning sexual consent in sexual offences cases in the country. They include: (i) withdrawal of consent  (ii) marital rape and (iii) Defilement of minors.

Withdrawal of consent

Withdrawal of sexual consent is an emerging issue under consent in sexual offences cases. Sexual consent can be withdrawn anytime during sex. This was depicted in the case of Charles Ndirangu Kibue v Republic [2016] eKLR where the court stated that the relevant time for consent is the time when sexual intercourse occurs. It went on to state that consent is previously given, may be withdrawn, thereby rendering the act non-consensual.

In Paul Nganga Kamau v. Republic the appellant was convicted of rape and sentenced to 12 years imprisonment with hard labor and six strokes of a cane.[21] The complainant testified that she agreed to spend the night with him for a sum of money. The Appellant however took her to a house where he alongside his two colleagues raped her in turns. The complainant testified that she had withdrawn her consent before intercourse with the Appellant and co-perpetrators. The High Court found that the complainant withdrew her initial consent before the sexual act and that the Appellant was guilty of rape.

Marital rape

Marital is not explicitly defined by the Kenyan laws but it can be defined as the case where a person uses violence or the threat of violence to force his or her spouse to have sex.[22] Marital Rape is yet to be criminalized in Kenya. Research by scholars has it that religious and traditional views on the role of spouses in marriages greatly influence the way in which Marital rape is viewed in the country. Both religious and traditional beliefs subordinate the wife to the husband and tend to put an extreme emphasis on the wife’s responsibility to please her husband.[23] So the wife in fulfilling her roles to the husband she should therefore not deny the husband conjugal rights.

Marital rape is thus not effectively recognized as rape in Kenya. This represents the common law marital exemption where husbands would not be convicted for an act towards their wives.[24] It is however important to note that consent to sexual activity, even in a spousal relationship is a dynamic process that requires constant negotiation and agreement between the partners.[25]

However, the trend is positively changing; Kenya has ratified several international and regional conventions that endorse the right to be free from coercion and violence as a human right. These conventions include the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) and the International Covenant on Civil & Political Rights (ICCPR). Marital rape is an act of violence and from recent judgments it is clear that the act is illegal in Kenya. A case in point is the BMM v Republic case where the Appellant was charged with the offence of rape contrary to the provisions of the Sexual Offences Act. In his defense the Appellant claimed that the complainant was his girlfriend. The court in finding the Appellant guilty of rape stated there is no law that allows anyone to forcefully have sex with another even if she is his wife as the same is termed as marital rape.

Defilement of a minor by a minor 

Courts have for quite some time now deliberated on whether a minor can defile another minor. The catch comes in when the minors are almost hitting the age of majority and they have both consented to the sexual activity. We recognise the fact that consent is no defence in defilement cases since minors lack the capacity to make informed consent. In a majority of the cases that have dealt with this issue, judges have often favoured one party at the expense of the other. The overall effect of such a ruling is that justice is not served but the opposite is true. However, a few progressive judges have carried out a balancing act albeit they with received harsh criticisms from Kenyans.

Courts are expected to take the best interest of a child between the ages of twelve to eighteen years even if they are found to have committed an offence. The United Nations Committee on the Rights of the Child requires state parties to come up with ways that strike a balance between the protection of the child and in determining the age of sexual consent. Kenya being a signatory to the document is required to refrain from criminalizing teenagers of the same age for engaging in consensual and non-exploitative sexual activity.

The emerging jurisprudence on the issue in question revolves around the basic principle of the Best Interest of the Child (BIC) being used in the determination of all cases involving children. The principle is encapsulated in Article 53 of the Kenyan Constitution.[26] The principle requires that on matters pertaining to the children, their best interest should be of paramount consideration both nationally and internationally. The concept has also been engraved in various instruments concerning the rights of a child: key among them is the Convention on the Rights of the Child and consequently the Kenyan Children’s Act.[27] In determining defilement cases involving minors the court should therefore be guided by the best interest of both children without any discrimination as to the sex of the child

Most courts, however, seem to take a sharp departure from this key rule.  In POO v DPP and other [2017] eKLR, the appellant was held in a long period with adults in adult facilities. It is unfair and pessimistic to put a lot of emphasis in punishing minor as opposed to looking at reasonable ways of helping them. There is no different treatment between minors and adults in so far as punishment of defilement is concerned. Unfortunately, children lack the mental, physical and psychological capacity to survive in adult correctional facilities.

Section 8 of the penal code has been applied in a discriminatory manner. Where, minors engage in consensual sexual intercourse, in most cases, it is only the male child who gets prosecuted yet both are minors. It appears as if the law is judgemental from the word go and the male minor is the perpetrator while the female fellow is just but a victim. This is a grave mistake and an erroneous assumption that only the male minor is capable of committing the offence of defilement. Such one-sided treatment on the face of it is in conflict with equal treatment enshrined in the constitution. Everyone is equal before the law hence if punishment ought to be given then both the offenders should receive their punishment in equal measures or at least an equivalent treatment to their contribution to the commission of the offence. The law should be fair enough, especially where the age gap is small and give both minors a second chance in life. Remember that the future of this nation is solely in the hands of these very youths who are being imprisoned. 

A number of cases have been decided in recent times that are not in strict adherence of the Sexual offences provision on sexual consent. These cases are decided based on circumstantial evidence and other tenets of the constitution; like the paramountcy principle of the basic interest of the child. Such cases include POO(A Minor) v Director of Public Prosecutions & Another[28] where the petitioner had been arrested and charged at a Senior Resident Magistrate Court, Mbita with the offence of defilement contrary to section 8(1) as read together with 8(4) of the sexual offences Act. It was established that the boy had had consensual sexual relations with his then-girlfriend when he was still a minor aged 16 years. In ordering the state to compensate the boy, the magistrate stated that the prosecution had solely discriminated the boy on the basis of his sex. This was because they had mutually agreed to have sex. The magistrate went on to state that both children needed guidance and counselling rather than criminal penal sanctions.

In Evans Wanjala Siibi v Republic,[29]the court of Appeal criticized the shortcomings of the Sexual Offences Act in handling teenage sexual activities. The court went on to further state that the constitutional provision on the Basic Interest of the Child should be appreciated and be the foremost justification in the amendment of the Sexual Offences Act.

In Martin Charo v Republic case justice Chitembwe decided that where a child under the age of 18 out of her own volition go to men’s houses for sex and then goes home, the court cannot conclude that such a person was defiled. Such conduct is taken to be that of an adult as children are not meant to enjoy sex.[30] Justice Chitembwe was therefore clear that conviction of a defiler should be based on actual circumstances and proof that the victim was indeed defiled. Justice Chitembwe further helped in creating a new jurisprudence under consent in sexual offences cases by stating that; when a teenager behaves in a manner suggesting that she is an adult; for example taking herself to the house of the defendant and actually having sex, she cannot then claim to have been defiled.

The emerging issue is that the strict application of the sexual offences act provisions sexual consent can be affected by various factors such as the age of both parties, whether the girl carried herself like an adult and also the basic interest of the child being affected by the case.

Recommendations

  1. Legislative reforms: most of our recommendations are purely based on legislative reforms. We recommend that the National Assembly should effect the following amendments and enactments:
    1. An amendment of section 8 of the Sexual Offences Act on its general applicability with due regard to special circumstances, especially where both parties are teenagers. The general interpretation of this section has always brought about indirect discrimination of the boy child whereby he is always labeled the villain while the girl is the victim, regardless of whether they had consensual sexual relations or not. The section should be amended in such a way that teenagers have the capacity to consent to sexual relations among themselves without any of them having to bear the consequences of defilement afterwards.
      1. Enactment of laws on Marital Rape. As discussed above, one of the reasons that marital rape is still common in the country it is because it yet to be criminalized. An alternative to this is the amendment of the sexual offences act to include marital rape amongst the other sexual offences provisions.
      1. The sexual Offences Act should be amended such that it gives room for judicial discretion in cases of peculiar nature. The judges should not be strictly restricted in conformity with the Sexual offences Act provisions, they should be able to apply the Basic Interest of the Child especially where a child is born as a result of two minors engaging in sexual relations. It would not be of the best interest for the child to miss the guidance and parental love of one of the parents under the pretext of the legal age of consent. Perceived from this perspective, the Sexual Offence of Defilement which is a crime of strict liability should be amended in the sexual offences Act to allow for the court to interrogate and consider the circumstances under which the consent was obtained.
      1. An amendment on the minimum sentences under defilement of section 8 of the sexual Offences Act empowers the court with the discretion to be able to fix the number of years a person is to be sentenced. The court should have the capacity to take into consideration several factors such the Basic Interest of a Child before giving a reasonable sentence.

Conclusion

The research above shows how biased the sexual offences act is prejudiced towards those of the male gender and lenient on the feminine one. In most cases, there is always indirect discrimination against the boy child whereby he is always labeled the villain while the girl is taken to be the victim, regardless of whether they had consensual sexual relations or not. It is also quite unfortunate for teenagers to be charged for having discretional teenage sexual relations. From the case studies, such as the Judgment from the Martin Charo case it is quite clear how important judicial discretion may bring about justice in convicting sexual offenders in consensual sexual relations. It is also clear that though marital rape has become prevalent in Kenyan society there are still no rules to curtail the same. Unfortunately, women are still subjugated because of their gender, this ought to come to an immediate end.

Tonny Arisi is a third-year law student. He hopes that one day equity will be served to both genders. tonnyarisi449@gmail.com

Michael Omondi is extremely interested in research and has a sharp focus on the interaction between legal and political issues. myllomosh@gmail.com


[1]Constitution of Kenya 2010, Article 2(4).

[2]Constitution of Kenya, 2010, Article 2(1).

[3] Judicature Act, Section 2(3).

[4] Constitution of Kenya 2010, Article 28.

[5] Constitution of Kenya 2010, Article 26(3).

[6] Constitution of Kenya, 2010, Article 29(c).

[7] What consent looks like (no date) RAINN. Available at: https://www.rainn.org/articles/what-is-consent (Accessed: February 17, 2023).

[8]  Constitution of Kenya, 2010, article 260.

[9] Section 2, Children’s Act cap 141, laws of Kenya

[10] What consent looks like (no date) RAINN. Available at: https://www.rainn.org/articles/what-is-consent (Accessed: February 17, 2023).

[11] Ibid.

[12] Section 8, Sexual Offences Act, No. 3 of 2006

[13] Levenson LL, ‘Good faith defenses: Reshaping strict liability crimes’ (78 Cornell Law Review, 1992) 404

[14] CKW V AG & another[2014] eKLR

[15] Section 3, Sexual Offences Act, No. 3 of 2006

[16] Diana E.H. Russell,’ Rape in marriage’ (Indiana University Press, 1990)

[17] DR. Winifred Kamau, ‘Legal Treatment of Consent in Sexual Offences in Kenya’ (February 2013) 15

[18] Frank J D, Bayliss J, Steven A B, “ Worldwide Trends in the Criminal Regulation of Sex, 1945-2005” 75( American Sociological Review) < https://journals.sagepub.com/doi/abs/10.1177/0003122410388493 > accessed by 16th February 2023

[19] Section 20(1), Sexual Offences Act

[20] Ibid 7

[21] Kamau v. Republic   High Court of Kenya at Nakuru (2004)

[22] Ibid 7

[23] Emma Nyaboke Nyabicha, ‘Exploring the Boundaries of Conjugal Rights: Marital Rape as a Criminal Offence in Kenya’ (Strathmore University Law School, January 2017) 14

[24]8 Jennifer A. Bennice & Patricia A. Resick: Marital Rape; History, Research and Practice; Trauma, Violence and Abuse, Volume 4, No.3, July 2003, Sage Publications 228‐246

[25] Melanie Randall, “Sexual Assault in Spousal Relationships, ‘Continuous Consent’, and the Law: Honest But

Mistaken Judicial Beliefs” (Manitoba Law Journal, 2008) 144-181

[26] Article 53(2) of The Constitution of Kenya

[27] UN Committee on the Rights of the Child (CRC),(December ,6 2016) General comment No.20(2016) on the implementation of the rights of the child during adolescence.

[28] POO (A Minor) v Director of Public Prosecutions & Another [2017] eKLR

[29] Evans Wanjala Siibi v Republic [2019] eKLR

[30] Martin Charo v Republic [2016] eKLR

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Michael has an unbeatable interest in research and is a keen and enthusiastic follower of emerging jurisprudence. He can be reached at Myllomosh@gmail.com