Interpretation of Section 8 of the Sexual Offenses Act, 2006 and Its Effect on the Boy Child in Cases of Minor to Minor Teenage Defilement in Kenya

Abstract

The study interrogates the role of the Sexual Offences Act No. 3 of 2006 in addressing defilement of the child and in particular section 8 of the act, with focus on the gap in its provision or lack thereof of on guidelines on what to do or whom to charge in the event that two minors a boy and a girl of close age (both teens) of about age 15 and 16 defile each other. It is quite notable that there are inequities in applicability of the law by society, law enforcers and the Justice system for example, where this can be applied in the context that when two minors (boy and a girl) both of 16years of age or one is 15 and the other 16 engage in sex, the boy is often charged in court while the girl is viewed and treated as the victim and is sought to be consoled and empowered while the boy is taken through the criminal justice system for trial. Under criminal Justice internationally, defilement is recognized as the act of taking away the chastity and purity of a child-an act that involves the penetration of genital organs of an adult into the genital organs of a child-The Sexual Offences Act No. 3 of 2006, Laws of Kenya section 8 defines defilement as such and goes on to give penalty for children of tender years to those of adolescent age. This refers to both the girl and boy child of an act of penetration by an adult but has a glaring gap on what should happen when minor adolescents are the ones who have defiled each other and as such this gap in law allows for abuse or other factors to be considered on whom to charge and it has become clear over the years that bias is on the boy child.1 “Child” has the meaning assigned to it in the Children Act2that is a person below the age of 18 years.3 The aim of these provisions is to protect any child irrespective of gender as supported by the Constitution 2010 on the best interests of the child.4 There is too much focus on the girl child in Kenya that the boy child has often been left out, neglected and even stigmatized; many boys get defiled/sodomised and this goes unreported partly due to social factors such as culture, societal beliefs and biological make up that causes the community at large including many Justice stake holders to believe that a boy cannot be defiled especially by a girl or by a woman