Minors, sex and the law: rethinking the regulation of consensual sex between minors in Kenya
Kigen, Tracy Jerop
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According to the Sexual Offences Act of Kenya (2006), minors cannot consent to sex. Any act of sex with a minor is deemed defilement, a strict liability offence, punishable by law. This provision in law was aimed at protecting minors against sexual abuse, especially by adults. Today, minors are having sexual relations with each other claiming consent and voluntariness. However, the courts have maintained a similar position to the law that a minor cannot consent to sex. Thus, consensual sex between minors is unlawful. This has left minors who are caught participating in consensual sex with each other charged of the offence of defilement and subjected to judicial proceedings. The general objective of this study is to examine the appropriateness of the law as a mechanism to regulate early adolescent sexual activities. This study also seeks to establish a deeper understanding of adolescent sexual behaviour and the need to regulate it. It suggests that criminal law can be a powerful tool in protecting children against sexual abuse by adults. However, by examining the deterrence and retributive theories of punishment, criminal law fails to be effective in preventing minors from engaging in sexual activities with each other.