The pivot point of sexual offences: Issue of consent in rape cases.

Kamau, Ann Wairimu
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Strathmore University
Rape as per the legislation is defined as any act of sexual intercourse that is forced upon a person. It can be done against an adult or a child (defilement). Rape has been closely associated and even sometimes used in the place of gender-based violence, or sexual violence, although they are not the same thing. The act may be carried out by physical force, coercion , abuse of authority or against a person who is incapable of valid consent, such as one who is unconscious, incapacitated, or below the legal age of consent. Consent on the other hand, is when someone agrees, gives permission, or says ‘yes’ to sexual activity with someone else. At the heart of consent is the idea that every person, man, or woman, has a right to personal sovereignty – not to be acted upon by someone else in a sexual manner unless he or she gives clear permission to do so. It is the duty of anyone initiating the sexual activity to get this permission from the other party. Absence of clear permission means you cannot go ahead and engage her or him in the act-this is the first step in maintaining the ‘very basic right to bodily integrity. Consent plays a great role in the determination of guilt in sexual offence cases. This is because the proof of lack of consent is an essential element in determining whether to proceed with a sexual offence charge against any alleged offender in any court of law. Despite the issue of consent being well defined by the respective legislations, the issue of consent is one that is really discombobulating especially in an unequal society, where women and men are not on the same level, inter alia socially, politically, economically unequal. Over the recent years, rape has become a common crime in Kenya as per a current study which showed that the rape rate for Kenya as per 2015 was 1.9 cases per 100,000 population. Day after day a woman comes out claiming to have been raped. This issue of consent has been addressed by both the local (the penal code and the sexual offences act) and international legislation such as The Statute of the International Criminal Court (ICC)
Submitted in partial fulfilment of the requirements of the Bachelor of Laws Degree,Strathmore University Law School