SEXUAL OFFENCES
These are offences covered under the Sexual Offences Act.
They include rape, sexual assault, defilement, child sex tourism, child pornography,
prostitution of persons with mental disabilities, exploitation of prostitution, and incest,
among others.
Our discussion will mainly focus on the offences of rape, sexual assault, and
defilement, the most common sexual offences in our courts.
RAPE
Section 3, the Sexual Offences Act (SOA) provides:
(1) A person commits the offence termed rape if-
a) he or she intentionally and unlawfully commits an act which causes penetration with
his or her genital organs;
b) the other person does not consent to the penetration; or
c) The consent is obtained by force or using threats or intimidation.
Actus reus
The prohibited conduct: committing an act which causes penetration with one’s
genital organs.
Both males and females can be liable for rape
Questions about how a female can cause the act of penetration when the only genital
organ capable of this conduct is the penis.
The statute does not define “an act which causes penetration”
Daniel Wambugu Maina vs R [2018] eKLR: The law does not envisage absolute
penetration into genitals or release of semen by male organs
Peter Wanjala Wanyonyi v R [2021]eKLR; Peter Mwiti Gichuru v R [2020] eKLR:
Penetration does not have to be proved through medical evidence; even the victim’s
oral or circumstantial evidence will suffice
S. 43 of the SOA, defines an act to be unlawful and intentional when committed under
any coercive circumstances, under false pretences or fraudulent means, or concerning
a person incapable of appreciating the nature of the conduct that offends. Fraudulent
means include circumstances where the defendant fails to disclose that she/he is
infected by HIV or another life-threatening sexually transmissible disease. This
section expressly excludes situations involving married couples.
Mens rea
The fault element of rape is intentionally and unlawfully causing penetration without
consent or with consent obtained through intimidation.
Under s. 42 SOA, a person is deemed to consent where she/he agrees by choice and
has the freedom and capacity to make such choice. As reiterated in Charles Ndirangu
Kibue v R [2016] eKLR, Criminal Appeal No. 14 of 2014, consent means “an
Dr. Evelyne Owiye Asaala
Criminal Law, International Criminal Law,
Transitional Justice and
International Human Rights Law
unequivocal voluntary agreement when the person, by words, gestures or any form of
non verbal communication, communicates willingness to participate in the specific
sexual act.
SEXUAL ASSAULT
Under S. 5 of the SOA, a person will be liable for sexual assault if he or she unlawfully
a) “penetrates the genital organs of another person with;
i) any part of the body of another or that person; or
ii) an object manipulated by another or that person except where such penetration is
carried out for proper and hygienic or medical purposes;
b) manipulates any part of his or her body or the body of another person so as to cause
penetration of the genital organ into or by any part of the other person’s body.”
Actus reus
It is the causing penetration to a genital organ or any part of the body through the use of a
body part or manipulation of an object. In John Irungu v R [2016] eKLR, Criminal Appeal
No. 20 of 2016, the court observed concerning the essential ingredients of sexual assault:
“…, for purposes of sexual assault, the penetration is not limited to penetration of genitals by
genitals. It extends to penetration of the victim’s genital organs by any part of the body of the
perpetrator of the offence, or of any other person or even objects manipulated for that
purpose.”
Mens rea
The act of penetrating or causing penetration would require the defendant to act intentionally.
DEFILEMENT
S. 8 SOA provides that a person who commits an act which causes penetration with a
child
Where the child is less than eleven years the defendant, upon conviction, is liable to a
sentence of life imprisonment, in the case of a child between twelve and 15 years to
imprisonment of not less than 20 years and the instance of a child between 16 and 18
years to imprisonment of a term of not less than 18 years.
Actus reus
Penetration with a child.
The prosecution must prove the victim's age, this determines the sentence the court
will give. This is also important because it can be inferred from the statute's language
that a child cannot consent.
In Lawrence Kariuki Njeru v Republic [2017] eKLR, Criminal Appeal 71 of 2015, a
case involving the defilement of a two-year-old. The Court set out the ingredients for
defilement as
a. Age of the victim,
b. Proof of penetration, and
c. Identification of the assailant.
Dr. Evelyne Owiye Asaala
Criminal Law, International Criminal Law,
Transitional Justice and
International Human Rights Law
Since the Supreme Court decision of Francis Karioko Murateru and Another v R.,
SCK Pet. No. 15 of 2015 [2017] eKLR, which declared mandatory minimum
sentences unconstitutional, Courts no longer observe the prescribed sentences but
instead issue sentences depending on the circumstances of each case, including
mitigating factors.
Mens rea
To cause penetration requires acting intentionally. The perpetrator must also know
that the victim is a child/minor.
What should be the correct age for consent and why?
How would you decide a case where a fifteen-year-old boy is accused of defiling a seventeen
year-old girl who has since dropped out of school because of the resultant pregnancy?
Dr. Evelyne Owiye Asaala
Criminal Law, International Criminal Law,
Transitional Justice and
International Human Rights Law
