Sexual offences come in very many forms. The infamous ones are rape and defilement. Rape or defilement may be aggravated – accompanied by violence or leave the victim infected with HIV. Anyone may be a victim of a sexual offence, but women are children are frequently victimized, unlike men. That, of course is not to say that men never fall victim of sexual offences.
Rape is having sexual relations with another person without their consent. Defilement is having sexual relations with minors. It does not matter that the minor gave their consent or that the minor looked older, or that the minor lied about their age. As a matter of law, sexual relations between adults must be consented to, by both adults otherwise, the non-consenting adult may register a complaint to the authorities against the other adult for rape. As a matter of both morality and the law, an adult must not have sexual relations with a minor.
When it comes to offences such as murder, one may put in a defense of self-defense or defense of one’s property. The defense serves the purpose of mitigating the accused’s sentence or even of varying the accused conviction. –One could say, I did not mean to kill Byekawaso. I just shot at the person who had come to steal my cows. Or, one could say, I did not mean to kill Byekwaso. He had a gun and wanted to shoot me. I just threw a stone at him and with no intent on my part, it hit his head and he died. An offence like murder, despite the fact that it is wrong and illegal to kill another person, may be justified.
The sexual offences Act Cap 62A, laws of Kenya makes provision for what constitutes a sexual offence.
Section 3 of the Sexual Offences Act outlaws rape. It attracts a sentence of up to life imprisonment. An attempt to rape another person is also outlawed by section 4 of the Sexual Offences Act. Gang rape, rape committed in the company of others is also outlawed by section 10 of the same law. Defilement is also outlawed by section 8 of the Sexual offences Act. Section 9 outlaws an attempt to defile a person.
Is there a time when a person is justified to commit a sexual offence?
Two videos have gone viral on YouTube and on several news channels. Both videos are shot in India. In one, several women are assaulted by several men and others are even raped. In another, a woman is stopped by two men in an alley. One man gets off a scooter, and forcefully gropes a woman. He also kisses her on the lips, forcefully. The woman is then pulled towards the scooter and together with the other man who stayed on the scooter, the men assault the woman. She is then thrown like a piece of garbage back into the alley where she falls helplessly on the tarmac. The scooter then rides away with the two men on it.
In response to the two videos, one minister in India said that the victimized deserved it. Why? They were dressed like Westerners (The white people). That by dressing like westerners, they invited men to rape them.
This is not something new – the allegation that a victim of rape invited the rapist. In Uganda, State Minister for Water Resources Ronald Kibuule once said that women who are victims of rape are the cause their predicament. He even trended on twitter (for a wrong reason) following his statement that “no arrest should be made after an indecently dressed woman is raped”. And his definition of indecent dressing is when a woman is dressed in tight jeans, a mini skirt or a bikini. – So much from our leaders!
Such comments show the extent of misogyny in our society. Sometimes, it does not even matter that the perpetrator of the sexual offence is educated. It seems misogyny is denser than education. Otherwise, we would have very large class of people who believe that there is no justification for sexual offences.
Sexual offences violate the dignity of a person. They go to the core of one’s being and affect the victim’s ability to relate with persons of the opposite sex or the kind of people who look like (in any way) the person who has assaulted the victim.
In matters concerning morality and the law, some wrongs and illegalities are heavier than others. A look at the penal code in Kenya or even in Uganda demonstrates the seriousness of sexual offences. Crimes like aggravated rape attract a life sentence upon conviction.
There should never be a time when one feels another should be raped or that a minor should be defiled. The time should not exist in law or in our morality. Society must not make any one, victim or perpetrator; believe that any sexual offence may be justified on flimsy grounds such as “indecent dressing”. A victim is never the person to blame. The rapist must be blamed.
BY SAMALI BITALA
This article appears in our weekly digital law magazine, The Deuteronomy Vol 1, Issue 1 of 6th January 2017
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