Consent can never be a defense for sexual violence against minors
In many cases of sexual gender-based violence, while the criminal justice system is the appropriate way to deal with perpetrators, some parties tend to settle the matters out of court. In some instances, perpetrators marry their victims after getting consent from the victim, her parents or both. This is even though a child- that is, anyone below 18 years under Kenyan law is incapable of giving consent.
A few weeks ago, Justice Muriithi upheld the sentencing of a man who had been found guilty of defiling his wife when she was 16 years old. The court ruled that the current marriage between the couple could not be used as a defence even if the girl willingly moved into the perpetrator’s house.
The court’s decision was received with mixed reactions. For some, the court was right in upholding the judgement and expect that the case will serve as a deterrent to early marriages and teenage pregnancies. For others, the court was insensitive to the parties’ current circumstance. The uproar is understandable as the family has now lost its sole breadwinner and must find alternative means of survival. We, however, must not forget that the perpetrator is guilty of a crime, regardless of whether it was committed years ago or whether it is purported that consent was given. The present circumstances do not change the fact that a crime was committed. The beauty of the law is that criminal matters have no statute of limitations.
Generally, for one to say that they have obtained consent, three elements must be achieved. There must be capacity, this includes, age and mental capacity. The person consenting must also have detailed information on what they are consenting to. If consent is not informed then there is no proper consent given. Finally, the consent must be free from coercion and/or duress.
The three elements of consent are part and parcel of sexual consent. These automatically lack if sex occurs where one of the parties is a minor. For sexual consent to have been properly obtained, it must be obtained freely, be reversible, informed, enthusiastic and specific. Consent is never implied by things like your past behaviour, dressing, or environment. Sexual consent is always clearly communicated — there should be no question or ambiguity. Silence is not consent. Claiming that consent was implied by dressing or environment is a perpetuation of rape culture and victim-blaming.
Due to the power imbalance that exists in sex with a minor or early marriage, it is impossible for a girl to give proper consent. In some circumstances, girls engage in transactional sex to meet their basic needs.
Girls from informal settlements are disenfranchised and are unable to afford necessities such as menstrual products, school fees and related expenses. These transactional situations at times morph into early marriages. Due to the nature of transactional sex, consent is often coerced. Also, where the perpetrator is older than the girl, there exists an element of coercion due to the age gap.
There is need to sensitize the community on the principle of consent. Age-appropriate sexual reproductive health education would be an ideal area of focus as adolescent girls are the primary victims of early marriage. Government initiatives such as menstrual health programs are essential in ensuring that girls are protected from early marriages and the sexual violence that emanates from the marriages.
Judicial precedents such as the one set by Justice Muriithi, are a great place to start to serve as a deterrent to communities which practise early marriage as well as to perpetrators of sexual violence.