Child Sexual Abuse: Is it a minor willing to have sex or an adult committing a crime?

By Erick Matsanza

On 28th April 2016, a man serving a 20 year sentence for defiling a 13 year old girl in 2012 was set free by a judge in Malindi ruling that the child behaved like an adult and enjoyed repeated sex with a 24 year old man. Martin Charo was convicted in 2012 by a magistrate court and appealed at the high court.

Justice Said Chitembwe concluded that the appellant ought to be freed because after several sexual episodes, age became a non-issue and the minor  seemed not to have been complaining. My question is what if the adult lured the minor into having sex causing her to get addicted as a result of repeated sex ordeal?

Justice Chitembwe ruled that conviction for the offense of defilement should not be limited to age and sexual penetration alone as these in themselves do not amount to conclusive proof of defilement. Such a ruling only but leaves minors vulnerable to sex predators. It makes children voiceless and helpless.

Chitambwe seems to opt for victim blaming crowning predators in his ruling that if age and penetration were made the key ingredient in the conviction then young girls would freely engage in sex and then opt to report to police whenever they disagree with their boyfriends. Is this a case of protecting minors or adults committing a crime?

Kenya baffles me on how it treats it’s female minors and I can rate the justice system as pathetic when it comes to judgement in protecting children. The judge happens to be a man, I hope he too has daughters considered to be minors.

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The laws in Kenya are very clear in drawing a line between minors and adults. Criminal law justice however goes ahead and creates a buffer for sexual abusers providing different age categories for 8-12, and 12-17. The court would be lenient in case the complainant falls between 12-17. This is an erroneous law that needs to be revised to end perversion in Kenya.

Lets take it that rape is having sex without consent with someone above 18 years and for an underage, its called defilement. So who is an underage? All decisions made by a minor should be in the presence of a guardian meaning if you are under 18yrs you can’t make certain choices categorized for adults.

There is need in #Kenya for better laws to be written that even protect those girls who make poor choices that are perceived to be a consent by a minor.

The man should still get jail term, even if the girl consented because of the laws that states SEX with a MINOR, under 18, is a CRIME.

AUTHOR:

Erick Matsanza is the Founder & Social Change Catalyst at Spice Without Borders (http://www.spicewithoutborders.org) an organization that envisions a society transformed by the creative and critical voice of the women. The organization also initiates Spice Chungu (http://www.spicechungu.org), a 6-month leadership incubation for women social change catalysts.

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