Reevaluating defilement laws in Kenya - a case for streamlining prosecutorial discretion

Abstract

In Kenya, the Sexual Offences Act was initially enacted to protect minors from defilement, focusing primarily on adult offenders. However, a critical issue has emerged where minors engage in consensual sexual activities with each other, despite the law's unequivocal stance that minors cannot legally consent to sex. This legal framework leads to the classification of such consensual acts between minors as defilement, thereby subjecting them to potential criminal liability. The research problem centres on the inconsistency and possible misuse of defilement laws when prosecuting minors involved in consensual sexual relations, raising questions about the appropriateness and fairness of the current legal approach. This research will examine prosecutorial discretion in cases where both parties are underage, analysing how the law is applied in practice and exploring the potential applicability of Romeo and Juliet laws in Kenya. The study will be grounded in the "Best Interests of the Child" theory, which posits that any legal action involving minors should prioritise their welfare and evolving capacities over punitive measures. By employing a doctrinal methodology and comparative analysis, the research will draw on experiences from other jurisdictions to critically evaluate existing legal frameworks and inform potential reforms. The novelty of this research lies in its critical examination of prosecutorial discretion, from which viable recommendations will be made. The study aims to propose a balanced legal framework that addresses the unique circumstances of minors engaging in consensual sexual activities, protecting them from both legal repercussions and exploitation. Ultimately, this research aims to advocate for policy reforms that ensure a more consistent and equitable approach, aligning the Kenyan legal system with the best interests of children while safeguarding them from abuse.