The Distinction between exploitative and non-exploitative underage sex and its effect on the scope of strict liability under section 8 of the sexual offences act
Wanjiru, Jane Njubi
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Section 8 of the Sexual Offences Act of Kenya was passed in 2006 with a view to protect minors from sexual abuse and exploitation. Under this law, consensual sex between minors is also criminalized because the law seeks to protect minors from themselves in terms of the negative effects arising from early sexual debut and activity. However, this law fails to consider the reality that adolescents engage in sexual activity as part of their normal development process and transition into adulthood. Therefore, criminalization of sexual activity in cases of non-exploitative, consensual sexual activity between adolescents goes ultra vires to the intended punitive target of section 8 of the Act. This paper recognizes the need to distinguish between exploitative and non-exploitative sexual activity between minors in order to correctly apply the law. In light of this, this paper seeks to demonstrate how the law can effectively deal with the current lacuna in the criminal justice system using the age-gap approach system. The application of this approach is restricted only to cases of non-exploitative, consensual sexual activity between adolescents of comparable age. This research paper is hinged on the application of the age-gap approach to educate rather than sanction adolescents on sexual and reproductive health in order to maintain the required balance between protections of adolescents from sexual predators as well as the harmful effects of adolescent sexual activity and preservation of their person-hood and autonomy during their transition into adulthood.