By Jane Onyango, Advocate

The offence of defilement is committed when one engages in sexual intercourse with a child (boy or girl) who is under the age of 18 years, regardless of whether the child gave consent or not. Under the Laws of Kenya, a child (any person who is under 18 years old) does NOT have capacity to give consent to have sexual intercourse.

In the Coastal region, defilement cases are the most prevalent gender based violence offences.

When one is the victim of or is assisting the victim of such, the proper procedure to use is as follows:

What to do:

  1. Seek medical intervention, which includes medical assessment, filling the post rape care (PRC) form and collecting forensic evidence. It is important to note that the victim should not take a shower before seeking medical attention and if the victim wants to change clothes, ensure the clothes worn during the commission of the act are kept in a khaki envelope and not a polythene one. For cases of defilement, it is important to carry the child’s birth certificate, notification of birth or baptism card. These documents serve as proof of age. Alternatively, the hospital may also conduct an age assessment to verify the age of the child.
  2. Report the offence to a Police Station and it will be recorded in the Occurrence Book and a P3 will be issued. The victim will also record a statement and he/she should verify the contents of that statement before signing.
  3. After conducting investigations, the Police will proceed to arrest the perpetrator of the offence once they are satisfied that they have enough evidence to charge him/her.
  4. The Police then prepare the charge sheet and the matter is filed in Court and the parties are given a date to attend court.
  5. At the Court the accused takes a plea and one can either plead guilty or not guilty, and the Court must satisfy itself that the plea is unequivocal, meaning it is not conditional.
  6. The Prosecution’s case will be heard first and after the closing of the Prosecution’s case, the Court will give a Ruling on whether the accused has a case to answer. If the court finds that there is no case to answer, the accused is acquitted as per Section 210 of the Criminal Procedure Code. If the Court finds that the Prosecution has made a compelling case then the accused will be put to his/her defence and allowed to present his/her case then the Defence will close his/her case. When this happens at this juncture, the Court will then give consideration to any mitigating factors at this juncture that could have an effect on the sentence to be handed down such as the accused being the sole breadwinner in the family.
  7. Once the Defence’s case has been closed the matter is left in the hands of the Court to deliberate and deliver a Judgement based on the facts presented and the applicable laws such as the Sexual Offences Act.
  8. The Court could acquit the accused if it finds that the Prosecution has failed to prove its case beyond reasonable doubt as is the standard of proof in criminal cases. The court could also convict the accused if there is no reasonable doubt. Again, the issue of mitigation comes into play here as well. With defilement cases the sentence depends on the age of the victim as provided in Section 8 of the Sexual Offences Act as follows;

If the victim is aged eleven years or below, the sentence is life imprisonment.

If the victim is aged between the age of twelve and fifteen, the sentence is imprisonment for a term not less than twenty years.

If the victim is aged between sixteen and eighteen, the sentence if for a term of not less than fifteen years.

If the offence is that of attempted defilement, then as per Section 9, the sentence is imprisonment for a term not less than ten years.

If either party is aggrieved by the decision of the Court, then he/she may file an Appeal.

It is important to cooperate with the investigating officer in cases of defilement. The child should be brought to court whenever he/ she is required. This enables the case to be decided swiftly.

The child must also be protected from any intimidation or fear. If you notice that the accused is threatening the child in any way, please inform the police as soon as possible. Also, make sure that the child receives the psychological care and support needed to recover. Get a qualified child psychologist to assist, or get the Children’s office to recommend one for you. Without proper care and attention, the child may not heal emotionally. There have been studies that suggest that a child who does not get proper psychological support may in future become an abuser. To avoid this, it is important to give attention to the child’s psycho-social needs after surviving such an event.

Jane Akinyi Onyango is an advocate of the High Court of Kenya. She has over 5 years experience in legal practice. She is currently pursuing a Master’s of Art’s Degree in International Relations and Diplomacy.

She is a Partner in the firm of Omollo Onyango & Company Advocates in Mombasa.


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