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
Publisher
University of Nairobi
Rights
Attribution-NonCommercial-NoDerivs 3.0 United StatesUsage Rights
http://creativecommons.org/licenses/by-nc-nd/3.0/us/Collections
- School of Law [290]
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