In a move likely to reshape policing, prosecutions and child protection policy, Kenya’s High Court has ruled out that minors can engage in consensual sexual relations so long they are of close age proximity.
The court said Kenyans minors who are under-18 may now have sex without the fear of being automatically dragged to court for defilement so long as the boy and the girl are of close age proximity and consenting.
The court held that applying Sections 8, 9 and 11 of the Sexual Offences Act to consensual, non-coercive and non-exploitative adolescent relationships breaches constitutional rights of minors.
The ruling arose from a petition challenging the prosecution of three teenagers, two boys and a girl aged between 17 and 19, at a Makadara chief magistrates court over defilement.
The petition argued that the law was being used to criminalize teenagers instead of protecting them from abuse and exploitation.
The petitioners argued that the provisions made no distinction between rape, coercion and exploitation on one hand, and consensual relationships between teenagers on the other.
They told the court that adolescents arrested over consensual relationships suffered criminal records, interrupted schooling, detention, stigma and psychological harm.
The petitioners also argued that fear of prosecution discouraged teenagers from seeking reproductive health information, contraception and adolescent-friendly healthcare services.
The court declared that enforcement of the Sexual Offences Act must distinguish between exploitative sexual abuse and consensual peer relationships involving adolescents close in age.
“A declaration be and is hereby issued, that the application of Sections 8, 9 and 11 of the Sexual Offences Act to consensual, non-coercive and non-exploitative sexual conduct between adolescents of close age proximity, absent evidence of exploitation, coercion, abuse or power imbalance, is inconsistent with Articles 27, 28, 31, 43 and 53 of the Constitution,” the court ruled.
It permanently suspended two criminal cases involving the teenagers, saying the prosecutions could not proceed in their current form because they concerned consensual adolescent peer conduct.
The law treats all persons below 18 years as incapable of giving legal consent to sexual activity and at the same time treats the offenders equally irrespective of age.
The judgment is expected to have significant implications for future prosecutions involving adolescents and may force police, prosecutors and courts to reassess how the Sexual Offences Act is applied to teenage peer relationships.
MG/as/APA