Redefining the ingredients of penetration and identification in rape and defilement cases in Kenya: a case for mandatory DNA testing in cases involving bodily fluids and epithelial cells

Abstract

Defilement and rape is the predominant forms of abuse in Kenya, and it exacts severe mental and physical tolls on victims. It not only exposes the victims to early pregnancies but also to the risks of HIV/AIDS and other sexually transmitted diseases. However, addressing both defilement and rape cases are fraught with challenges such as the possibility of coaching children victims, fabrication of rape allegations, the denial of exculpatory evidence for accused persons. Additionally, the non-operationalization of Kenya’s DNA database hinders the effective prevention, investigation and investigation of such cases. The current Kenyan law and practice does not mandate for DNA testing in defilement and rape cases and the resultant effect is the increased possibility for mistaken identity hindering the ability to establish innocence. This study aims to interrogate the Sexual Offences Act No. 3 of 2006 Cap 63A to determine whether or not mandatory DNA testing can help alleviate the above mentioned challenges with regards to defilement and rape cases involving bodily fluids and epithelial cells. Anchored on the rational theory of crime, this study utilizes a doctrinal research methodology to scrutinize primary sources alongside secondary data to assess the legal landscape surrounding defilement cases in Kenya. Further, the study undertakes a comparative study of the legislation and practice of DNA testing in South Africa. South Africa is selected as a comparator country because of its progressive legislation and jurisprudence, from which Kenya can draw some valuable lessons. Ultimately, the findings of this study have the potential to provide valuable insights for policymakers and legal practitioners highlighting the imperative of integrating provisions on mandatory DNA testing in defilement and rape cases involving bodily fluids and epithelial cells into the existing legal framework. This integration could significantly bolster the protection of children from sexual abuse and ensure that perpetrators are only held accountable for their actions.

Key words: (Defilement, Rape, Sexual Offences Act, and Mandatory DNA testing.)