Legal Responses to Intra-familial Child Sexual Abuse in Kenya: a Case for Restorative Justice

Abstract

Children are more vulnerable to victimization than adults. It is for this reason that they are more prone to all kinds of abuse including sexual abuse. Statistics show that most perpetrators of child sexual abuse are persons closest to the child, including family members. This study focuses on child sexual abuse within the family, referred to as intra-familial child sexual abuse (IFCSA). This kind of abuse impacts its victim differently from child sexual abuse by an outsider. The criminal justice process in Kenya, however, responds to both uniformly without regard to this distinction. This means that an incidence of sexual abuse by a father or any other relative is dealt with in a similar way as that of sexual abuse by a stranger. This study demonstrates the uniqueness of IFCSA by identifying and unpacking its specificities. The specificities include the influence of patriarchy and family set up, concerns of livelihood, associated stigma and taboos, community expectations, and the tension around the issue of ownership of the conflict. They present bottlenecks that have the cumulative effect of complicating the reporting, investigation and prosecution of IFCSA cases. The complications propel the victims and their families towards the path of least resistance. This may take the form of either covering up the abuse or outright complicity and acquiescence by those supposed to report the offence. These specificities therefore have the potential of impeding justice if left unacknowledged and unattended by the legal system. The research demonstrates that the bottlenecks cannot be resolved under the existing legal framework. It hence proposes the incorporation of restorative processes, values and ideals into the criminal justice system. The study does not however seek to replace or overhaul the entire criminal justice system. It instead explores possibilities of incorporating the beneficial and constructive values of restorative justice to the extent that they are compatible with the existing criminal justice system. The possibilities identified by the study include re-designing the justice process in order to minimize its anti-therapeutic effects through the implementation of therapeutic jurisprudence throughout the criminal justice process; borrowing restorative processes and values from informal justice to enrich the criminal justice system; diverting a limited category of IFCSA cases especially those involving non coercive sexual encounter between teenage relatives; incorporating the participation of more non-professional players at all possible stages of the justice process; reforming existing laws to

accommodate restorative justice; and calling upon the executive to show political will by investing in institutions that are positioned to build resilience in victims and potential victims of IFCSA