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Published online by Cambridge University Press: 08 July 2021
This article analyses the dilemmas encountered in enforcing the Kenyan law on defilement, focusing specifically on consensual sex between adolescents. It argues that, although punishing adults who have sex with minors is clearly justified, punishment cannot be justified in the case of minors who engage in “experimental” sex with each other. It challenges the current legal regime that allows only one minor (male) to be charged, and not the other (female), noting that neither of the mutual participants would feel vindicated by punishing the other. Similarly, it shows that charging both participants also poses legal and policy challenges. Consequently, it argues that charging adolescents for defilement when they have consensual sex with each other goes against the very policy that informed the adoption of the anti-defilement provisions. The article recommends that Kenya's legislation is reformed to create a legal regime that protects juveniles from sexual violation without victimizing them.
LLB (Busoga), LLM (Dar es Salaam), PGD in law (Kenya School of Law). Principal prosecution counsel (Office of Director of Public Prosecutions, Kenya).
LLB (Dar es Salaam), LLM (Western Cape), Dr iuris (Humboldt), PGD in legal practice (Law School of Tanzania). Senior lecturer, University of Dar es Salaam School of Law; advocate, High Court of Tanzania.
1 Act No 3 of 2006.
2 SOA, sec 8(1).
3 Id, sec 2.
4 Ibid.
5 Id, sec 2 read with sec 2 of the Children Act, No 8 of 2001; Constitution of Kenya of 2010, art 260.
6 SOA, sec 3(1).
7 Id, secs 42–43(1)(c) and 43(4)(f); Mtawali Bomu v Republic [2011] eKLR; Salim Owino Chitechi v Republic [2012] eKLR; David Mwangi Njoroge v Republic [2015] eKLR; Eliud Waweru Wambui v Republic [2019] eKLR.
8 However, SOA sec 8(7) provides that minors found guilty of defiling should be dealt with under the law relating to children in conflict with the law and not be sentenced like adults; SNN v Republic [2019] eKLR.
9 Parliament of Kenya Official Hansards Report (26 April 2006 pm) at 785; Miroslava, P “Talking about sex: Contemporary construction of sexuality in rural Kenya” (2000) 47/3–4 Africa Today 83 at 83–84Google Scholar.
10 For example, laws on marriage align with the SOA by prescribing 18 years as the minimum age of consent.
11 Cap 63, Laws of Kenya.
12 Alfred Kiptanui Kangogo v Republic [2003] eKLR.
13 Criminal Law (Amendment) Act (No 5 of 2003), sec 19.
14 Penal Code (Kenya), sec 145(1) before its repeal by the SOA in 2003; Parliament of Kenya Official Hansards Report, above at note 9 at 785.
15 Ministry of Health “Adolescent and youth sexual and reproductive health evidence-based interventions in Kenya” (2013) at 17; Miroslava “Talking about sex”, above at note 9 at 88–90.
16 Parliament of Kenya Official Hansards Reports (27 April 2005 pm) at 987; EM Sidze et al “From paper to practice: Sexuality education policies and their implementation in Kenya” (April 2017, Guttmacher Institute) at 18–19, available at <https://www.guttmacher.org/report/sexuality-education-kenya> (last accessed 25 May 2021).
17 Sidze et al, ibid.
18 Miroslava “Talking about sex”, above at note 9 at 88–90.
19 Kenya Demographic and Health Survey 2008–09 (2010, Kenya National Bureau of Statistics and IFC Marco) at 197.
20 Ibid.
21 Kenya Demographic and Health Survey 2014 (2014, Kenya National Bureau of Statistics) at 60.
22 Id at 251–52; Kenya Demographic, above at note 19 at 205.
23 “General comment no 20 (2016) on the implementation of the rights of the child during adolescence” (2016, CRC), paras 9–10; H Saba “Adolescent: An age of storm and stress” (2013) 2/1 Review of Arts and Humanity 19 at 22 and 26; POO (A Minor) v DPP and Senior Resident Magistrate, Mbita Law Courts [2017] eKLR.
24 Criminal Justice System in Kenya: An Audit (2016, National Council on the Administration on Justice) at 144–49.
25 Ibid.
26 Id at 136.
27 For example, WKN v Republic [2016] eKLR; Martin Charo v Republic [2016] eKLR; CMK v Republic [2015] eKLR; and Chitechi, above at note 7.
28 For example, arguments that marriages existed were raised in: MDT v Republic [2014] eKLR; Chitechi, above at note 7; Mohammed Makokha v Republic [2013] eKLR; Duncun Mwai Gichuhi v Republic [2015] eKLR; CMK, above at note 27; and Charo, above at note 27.
29 See Constitution of Kenya, art 45(2); the Marriage Act (No 4 of 2014), sec 4; and Children Act, sec 14.
30 Parliament of Kenya Official Hansards Report (27 April 2005 am) at 985–88; CKW v The Honourable Attorney General and DPP [2014] eKLR, citing the South African Teddy Bear case, below at note 41; High, A “Good, bad and wrongful juvenile sex: Rethinking the use of the statutory rape laws against the protected class” (2016) 69/3 Arkansas Law Review 787 at 799Google Scholar.
31 See SOA, sec 43(1)(c), read with sec 43(4)(f); Luka Waithaka Ndegwa v Republic [2017] eKLR; Bomu, above at note 7; Chitechi, above at note 7.
32 See Luka Waithaka Ndegwa, ibid; Carpenter, C “On statutory rape, strict liability, and the public welfare offense model” (2003) 53/2 American University Law Review 313 at 334Google Scholar.
33 CKW, above at note 30. See also Miroslava “Talking about sex”, above at note 9 at 88.
34 Parliament of Kenya Official Hansards Report (3 November 2014 pm) at 3989; Parliament of Kenya Official Hansards Report (Hansard 27 April 2005 pm) at 985–1007; Parliament of Kenya Official Hansards Report (26 April 2006 pm) at 743.
35 Samuel Warui Karimi v Republic [2016] eKLR; Patrick Kathurima v Republic [2015] eKLR; Kibangeny Arap Koril v Republic [1959] EA 92.
36 [1995] UKHL 15.
37 SNN, above at note 8; WKN, above at note 27.
38 See MDT, above at note 28; WKN, ibid; GO v Republic [2017] eKLR; and POO, above at note 23.
39 POO, ibid.
40 Above at note 30.
41 Teddy Bear Clinic for Abused Children and Another v Minister of Justice and Constitutional Development and Another (CCT12/13) [2013] ZACC 35.
42 Act No 32 of 2007.
43 See below at note 65.
44 CKW, above at note 30.
45 See, for example, POO, above at note 23, in which a boy aged 16 years was charged for having consensual sex with a minor girl. The court observed that both should have been charged together for mutual defilement or, alternatively, be sent to a counsellor. The court found that the petitioner had been discriminated against on the basis of sex / gender upon being charged alone. In GO, above at note 38, the appellant was aged 16 and two months when he engaged in penetrative sex with a girl aged 17 years. The court remarked that it was discriminatory to accuse only the boy. In WKN, above at note 27, the court took judicial notice that the “male child” is usually punished in cases where two teenagers engage in sex. In CMK, above at note 27, it was held that enforcement of anti-defilement laws should not discriminate against the boy child. In Wambui, above at note 7, it was noted that it is a tragedy that Kenyan prisons are teeming with young men serving lengthy sentences for having had sexual intercourse with adolescent girls whose consent is considered immaterial simply because they were under 18 years.
46 A Ochieng “Lawyers see bias in application of sexual offences law” (1 February 2016) Daily Nation (Kenya), available at: <https://nation.africa/kenya/news/lawyers-see-bias-in-application-of-sexual-offences-law-1166068> (last accessed 25 May 2021).
47 B Mutanu “Sexual offences law discriminative to boys, CJ Maraga says” (17 May 2019) Daily Nation (Kenya), available at: <https://www.businessdailyafrica.com/bd/news/sexual-offences-law-discriminative-to-boys-cj-maraga-says-2250604> (last accessed 10 June 2021); K Muthoni “CJ Maraga calls for change of law criminalizing teen sex” (17 May 2019) Standard Digital (Kenya), available at: <https://www.standardmedia.co.ke/article/2001325822/maraga-relook-law-on-sexual-offences> (last accessed 25 May 2021).
48 POO, above at note 23; GO, above at note 38; WKN, above at note 27; CKW, above at note 30, holding that there is no legal provision barring prosecution of both participants in cases of double mutual defilement.
49 O-DPP “National prosecution policy” (2015) part B, para 6(b).
50 O-DPP “Diversion policy” (2019), para 6.
51 Ibid.
52 Id, paras 8 and 46.
53 O-DPP “National prosecutions policy”, above at note 49, part B, para 6(b); O-DPP “General prosecutions guidelines” (2015), chap 5, paras 22 and 24; POO, above at note 23; GO, above at note 38; WKN, above at note 27.
54 O-DPP “Diversion policy”, above at note 50, para 44(a).
55 Id, paras 7, 12(a) and 44 (c).
56 O-DPP “Diversion policy guidelines and explanatory notes” (2019), para 7.
57 Cap 92, Laws of Kenya.
58 Act No 8 of 2011 of Laws of Kenya. Note that cap 141 referred to in SOA, sec 8(5) was repealed by the Children Act, but SOA has not been amended to reflect that position.
59 See The Children Bill (Kenya) 2019 available at: <http://www.socialprotection.go.ke/wp-content/uploads/2020/06/Children-Bill.pdf> (last accessed 10 June 2021).
60 The Children Bill, clauses 228 and 230–33.
61 Child Justice Act 75 of 2008, chap 8.
62 Above at note 41.
63 Id, para 74.
64 Id, para 102.
65 See the Criminal Law (Sexual Offences and Related Matters) Amendment Act, No 5/2015, sec 3. For more details, see GD Kangaude and A Skelton “(De)criminalizing adolescent sex: A rights-based assessment of age of consent laws in eastern and southern Africa” 8/4 SAGE Open 1; Mahery, P “The 2015 Sexual Offences Amendment Act: Laudable amendments in line with the Teddy Bear clinic case” (2015) 8/2 South African Journal of Bioethics and the LawCrossRefGoogle Scholar, available at: <https://www.researchgate.net/publication/285543262_The_2015_Sexual_Offences_Amendment_Act_Laudable_amendments_in_line_with_the_Teddy_Bear_clinic_case> (last accessed 25 May 2021); A Skelton “Child justice in South Africa: Application of international instruments in the Constitutional Court” (2018) 26/3 International Journal on Children's Rights 391 at 405–10.
66 Teddy Bear case, above at note 41, paras 11, 13, 19–24 and 77.
67 [1894] 1 QB 710, facts extracted from R v Gnango [2011] UKSC 59.
68 The Criminal Law Amendment Act of 1885, sec 5.
69 The Serious Crimes Act, cap 27, sec 51(1).
70 Id, sec 51(2).
71 Above at note 67.
72 Williams, G “Victims and other exempt parties in crime” (1990) 10/3 Legal Studies 245 at 245CrossRefGoogle Scholar.
73 Ibid.
74 Baker, DJ Reinterpreting Criminal Complicity and Inchoate Participation Offences (2016, Routledge) at 148CrossRefGoogle Scholar, citing Williams, id at 245; and R v Tyrell, above at note 67.
75 Baker, DJ “Liability for encouraging one's own murder, victims, and other exempt parties” (2012) 23/3 King's Law Journal 256 at 279CrossRefGoogle Scholar.
76 High “Good, bad and wrongful”, above at note 30 at 799, 817 and 826.
77 Ministry of Health “National adolescent sexual and reproductive health policy” (2015).
78 Id, part 5.
79 Above at note 41, para 89.
80 Kenya Penal Code, sec 20(1). Republic v Mohammed Wanyoike and Another [2017] eKLR, holding that one becomes a principal offender by actually committing, or soliciting another to commit, or aiding and abetting the commission of an offence. Republic v David Ruo Nyambura and Four Others [2001] eKLR, noting that, unlike in Kenya, jurisdictions such as England and the USA classify principal offenders into “first degree offender” (one who actually commits the offence) or “second degree offender” (one who solicits, aids or abets the commission of the offence). Pethad Ramnik Shantilal and Another v Republic [2015] eKLR cemented that there is no differentiation of culpability in cases of principal offenders in Kenya.
81 Criminal Procedure Code (Kenya), sec 135(1).
82 Id, sec 136(a)(b) and (c).
83 The term “chief witness” was used in Republic v Laban Kimondo Karanja [2006] eKLR and in Republic v Faith Wangoi [2015] eKLR to distinguish the person who lodges a complaint from the state that initiates criminal proceedings.
84 Mwangi Gakuo v Republic [2015] eKLR, holding that penetration should be proved beyond reasonable doubt.
85 The Constitution, arts 49(1), (b) and (d), and 50(2)(i) and (l).
86 Kassim Ali v Republic [2006] eKLR; and Geoffrey Anaya Alias Kibito v Republic [2016] eKLR, in which the High Court ruled that to prove penetration in the absence of evidence of the medical expert, there must be sufficient and trustworthy evidence from the complainant. However, there are no precedents suggesting that penetration may be proved by medical experts without allegations by the complainant in person or through an intermediary.
87 CMK, above at note 27.
88 SOA, sec 2.
89 CMK, above at note 27. See also Parliament of Kenya Official Hansards Report (27 April 2006) at 782, 788–89 and 993–94; KW Kiarie “The Sexual Offences Act: Omissions and ambiguities” Kenya Law, available at: <http://kenyalaw.org/kl/index.php?id=1894> (last accessed 25 May 2021).
90 See Jefferson, M Criminal Law (6th ed, 2003, Pearson Education Limited) at 17–18Google Scholar; Maxwell, PB On the Interpretation of Statutes (2nd ed, 1883, Maxwell and Sons) at 318–19Google Scholar; Posne, RA “Statutory interpretation: In the classroom and in the courtroom” (1983) 50/2 The University of Chicago Law Review 800 at 805Google Scholar.
91 Aids Law Project v Attorney General and Three Others [2015] eKLR; Michael Waweru Ndegwa v Republic [2016] e KLR, citing with approval Connecticut National Bank v Germain 503 US 249 (1992).
92 Before the SOA was enacted, sexual offences were provided for under chap XV (secs 139–69) of the Penal Code, entitled “offences against morality”. SOA, second sched repealed secs 139–45, 147–49, 161, 164 and 166–68 of the Penal Code.
93 Levine, KL “No penis, no problem” (2006) 33/2 Fordham Urban Law Journal 100 at 104–06Google Scholar.
94 Id at 108–09.
95 Id at 107–08.
96 Ibid.
97 Id at 101–03 and 109–16; the Constitution, art 27(1).
98 [2015] eKLR.
99 [2007] eKLR.
100 Black, HC Black's Law Dictionary (6th ed, 2nd reprint, 1990, West Publishing Co) at 213–14Google Scholar.
101 [2017] eKLR.
102 High “Good, bad and wrongful”, above at note 30 at 794; Teddy Bear case, above at note 41, para 97.
103 In Makokha, above at note 28, the complainant testified that the appellant was her husband, that they had previously had sex with each other until she became pregnant, and that she knew it was wrong to get married before the age of majority but had done so nevertheless. In Chitechi, above at note 7, the complainant tried to commit suicide when her parents objected to her marriage to the appellant.
104 “General comment no 20”, above at note 23, paras 9 and 10; Saba “Adolescent”, above at note 23 at 22 and 26; POO, above at note 23; Teddy Bear case, above at note 41, paras 43–46.
105 The State of the World's Children 2011 (2011, UN Children's Fund) at 22 and 26.
106 Teddy Bear case, above at note 41, paras 43–46 and 55–57.
107 Id, paras 43–47.
108 Stevens, P “Decriminalizing consensual sexual acts between adolescents within a constitutional framework: The Teddy Bear Clinic for Abused Children and Another v Minister of Justice and Constitutional Development and Others case 73300/10 [2013] ZAGPPHC 1 2013” (2013) 26/3 South African Journal of Criminal Justice 41 at 46, 52 and 54Google Scholar.
109 P Talavera “The myth of the asexual child in Namibia” in Unravelling Taboos: Gender and Sexuality in Namibia S Lafont and D Hubbard (eds) (2007, Legal Assistance Centre) 58 at 65–67.
110 Phillis, N “When sixteen ain't so sweet: Rethinking the regulation of adolescent sexuality” (2011) 17/2 Michigan Journal of Gender and Law 271 at 278–79Google Scholar; Christopher, RL and Christopher, KH “The paradox of statutory rape” (2012) 87/2 Indiana Law Journal 505 at 514–15Google Scholar.
111 Luka Waithaka Ndegwa, above at note 31, holding that defilement is complete once it is proved that the complainant was below the age of 18 years; it is immaterial that she or he consented to sex. In Muthoka Mwalya v Republic [2015] eKLR, it was held that the fact that the complainant had been married and had had sex previously did not negate the offence of defilement committed by the man who subsequently had sex with her.
112 Luka Waithaka Ndegwa, ibid.
113 CKW, above at note 30; Luka Waithaka Ndegwa, ibid.
114 Ali Kazunguzeth v Republic [2015] eKLR; Jefferson, M Criminal Law (9th ed, 2009, Pearson Education Limited) at 139Google Scholar.
115 See, generally, Parikh, SA “They arrested me for loving a schoolgirl: Ethnography, HIV, and a feminist assessment of the age of consent law as a gender-based structural intervention in Uganda” (2012) 74/11 Social Science and Medicine 1774CrossRefGoogle Scholar; Stevens “Decriminalising consensual sexual acts”, above at note 108 at 53.
116 [2016] eKLR.
117 [2015] eKLR.
118 587 N.W.2d 214, as cited in Sutherland, K “From jailbird to jailbait: Age of consent law and the construction of teenage sexualities” (2003) 9/3 William & Mary Journal of Women and the Law 313 at 316 and 331Google Scholar.
119 Sutherland, id at 316.
120 Luka Waithaka Ndegwa, above at note 31.
121 Teddy Bear case, above at note 41, para 55. In support, see also Kangaude and Skelton “(De)criminalizing adolescence sex”, above at note 65 at 7–10, advancing a human rights-based approach in favour of decriminalizing consensual sex between adolescents.
122 Kazunguzeth, above at note 114.
123 Above at note 7.
124 Above at note 28.
125 Above at note 27.
126 Above at note 28.
127 This cannot be regarded as marriage, for underage marriage is prohibited in Kenya. See the Constitution, art 45(2); The Marriage Act No 4 of 2014, sec 4.
128 A similar move was made by the Court of Appeal in Meshack Nyongesa v Republic [2016] eKLR.
129 See, for example, Luka Waithaka Ndegwa, above at note 31; W Okech “Outrage as judge sets free defiler because ‘girl was willing’” (2 May 2016) The Standard (Kenya), available at: <https://www.standardmedia.co.ke/article/2000200296/outrage-as-judge-sets-free-defiler-because-girl-was-willing> (last accessed 25 May 2021).
130 High “Good, bad and wrongful”, above at note 30 extensively used “victim-offender binary” as a quotient to describe offensive sexual encounters, alluding that there are no actual victims in cases of sexual liaison between equally placed adolescents.
131 “General comment no 20”, above at note 23, para 40.
132 Sec 14 provides that persons younger than eight years are not criminally responsible for any act or omission. Sec 14(2) provides that persons aged between eight and 12 years are not criminally responsible for any act or omission but that the presumption can be rebutted if it is shown that the offender had capacity to know that he or she ought not to have acted, in case of offences by commission, or ought to have refrained, in case of offences by omission. Sec 14(3) provides that males aged below 12 years are incapable of having carnal knowledge: Republic v JO and Another [2015] eKLR; Republic v EM [2015] eKLR. Persons who are considered incapable of committing offences are said to be doli incapax, while those considered capable of committing offences are said to be doli capax.
133 CKW, above at note 30; Kern, JL “Trends in teen sex are changing, but are Minnesota's Romeo and Juliet laws?” (2013) 39/5 William Mitchell Law Review 1607 at 1607Google Scholar; High “Good, bad and wrongful”, above at note 30 at 800, citing the decision of Utah's Court of Appeal in State ex rel ZC v State 128 P.3d at 566.
134 POO, above at note 23; GO, above at note 38; CMK, above at note 27.
135 CKW, above at note 30 noted that “consent by victim” is negated once a complaint is made, as it should be taken to connote some element of coercion or deceit on the part of the party complained against. However, the judge failed to take judicial notice that most complaints, if not all, are made by concerned adults, such as parents of presumed victims, as allowed by SOA, sec 2(1).
136 Teddy Bear case, above at note 41, para 79.
137 [2015] eKLR.
138 Above at note 27.
139 Above at note 28.
140 A similar position was adopted in Ali Kazungu v Republic [2015] eKLR.
141 Penal Code Act, (cap 63, Laws of Kenya), sec 14(3). However, as discussed earlier, the position is disputable with respect to girls.
142 Parliament of Kenya Official Hansards Report (27 April 2006 pm) at 790–92 and 801.
143 Fred Omar Omondo v Republic [2014] eKLR; R v G [2008] UKHL 37; Phillis “When sixteen ain't so sweet”, above at note 110 at 277–79; Carpenter “On statutory rape”, above at note 32 at 334–36 and 350–51.
144 “General comment no 20”, above at note 23, para 40.
145 Carpenter “On statutory rape”, above at note 32 at 319–20, 353 and 361.
146 High “Good, bad and wrongful”, above at note 30 at 790 and 801–02.
147 The complainants in Makokha, above at note 28, and Chitechi, above at note 7, were expectant, while the complainant in CMK, above at note 27, was already a teen mother.
148 High “Good, bad and wrongful”, above at note 30 at 790 and 801–02.
149 Criminal Justice System in Kenya, above at note 24 at 136, 142 and 342–43; CKW, above at note 30; CMK, above at note 27; Meshack Nyongesa v Republic [2016] eKLR; POO, above at note 23; Wambui, above at note 7; SNN, above at note 8; P Ogemba “Judges in Kenya root for review of Sexual Offences Act to end unfair penalties” (3 October 2016) Standard Digital (Kenya), available at: <https://www.standardmedia.co.ke/article/2000218183/judges-in-kenya-root-for-review-of-sexual-offences-act-to-end-unfair-penalties> (last accessed 25 May 2021).
150 National Assembly Bills No 45.
151 As amended by Criminal Law (Amendment) Act, No 5 of 2003, sec 19. This amendment adjusted the age of consent by girls (the law on defilement was gendered, as only girls would have been victimized under that regime) from 14 to 16 years.
152 J Ngirachu “State abandons push to lower consent age from 18 to 16 years” (9 February 2017) Daily Nation (Kenya), available at: <https://nation.africa/kenya/news/state-abandons-push-to-lower-consent-age-from-18-to-16-years-359054> (last accessed 25 May 2021); R Obala “MPs throw proposals to reduce age of consent to 16” (2 February 2017) Standard Digital (Kenya), available at: <https://www.standardmedia.co.ke/article/2001227977/mps-throw-out-proposals-to-reduce-age-ofper cent20consent-to-16> (last accessed 25 May 2021).
153 Parliament of Kenya Official Hansards Report (1 February 2017 pm) at 16 and 25, available at: <http://www.parliament.go.ke/sites/default/files/2017-05/Hansard_Report_-_Wednesday_1st_February_2017_P_1.pdf> (last accessed 25 May 2021).
154 Id at 29.
155 Criminal Justice System, above at note 24 at 142 and 343. The jurisdictions of Botswana, Namibia, South Africa, Zambia and Zimbabwe were cited in support of the recommendation.
156 Above at note 27. The jurisdictions of Spain, South Africa, Austria, Belgium, Bulgaria, Switzerland, Czech Republic, Germany, UK, Hungary, Denmark, Slovenia, Ukraine and Estonia were cited in support of the recommendation.
157 Above at note 7.
158 See, for example, J Masiga “Proposal to lower age of consent unfortunate” (2 April 2019) Standards Digital (Kenya), available at: <https://www.standardmedia.co.ke/article/2001319060/proposal-to-lower-age-of-consent-unfortunate> (last accessed 25 May 2021); C Luchetu “Age of sexual consent should be 20: Knut official” (10 April 2019) The Star Digital (Kenya), available at: <https://www.the-star.co.ke/counties/western/2019-04-10-age-of-sexual-consent-should-be-20--knut-official> (last accessed 25 May 2021); G Aradi “Opposition grows over judges’ proposal to lower age of sex consent” (1 May 2019) Standards Digital (Kenya), available at: <https://www.standardmedia.co.ke/article/2001323445/opposition-grows-over-judges-proposal-to-lower-age-of-sex-consent> (last accessed 25 May 2021).
159 Above at note 8.
160 Kern “Trends in teen sex”, above at note 133 at 1611–13; Flynn, D “All the kids are doing it: The unconstitutionality of enforcing statutory rape laws against children & teenagers” (2013) 47 New England Law Review 681 at 686–87Google Scholar.
161 Kern, ibid; High “Good, bad and wrongful”, above at note 30 at 795–97.
162 Ibid.
163 Ibid. Flynn “All the kids”, above at note 160 at 687.
164 Kern “Trends in teen sex”, above at note 133 at 1611–12.
165 High “Good, bad and wrongful”, above at note 30 at 827.
166 Id at 794–96; Flynn “All the kids”, above at note 160 at 688.
167 High “Good, bad and wrongful”, above at note 30 at 794–96.
168 Ibid.
169 Id at 794.
170 Above at note 7. In making that decision, the Court of Appeal of Kenya was persuaded by Gillick v West Norfolk and Wisbech Area Health Authority [1985] 3 ALL ER 402 (in which the court held at 422 that: “If the law should impose on the process of ‘growing up’ fixed limits where nature knows only a continuous process, the price would be artificiality and a lack of realism in an area where the law must be sensitive to human development and social change”) and by Chief Justice Lord Parker who, in R v Howard [1965] 3 ALL ER 684, held at 685 that, “where he ruled that in the case of prosecution charging rape of a girl under 16 the crown must prove either lack of her consent or that she was not in a position to decide whether to consent or resist” and added that “there are many girls who know full well what it is all about and can properly consent”.
171 “General comment no 20”, above at note 23, para 20.
172 Ferzan, KK “Consent, culpability, and the law of rape” (2016) 13/2 Ohio State Journal of Criminal Law 397 at 419–20Google Scholar.
173 High “Good, bad and wrongful”, above at note 30 at 794–96.
174 Ibid; Flynn “All the kids”, above at note 160 at 688; SNN, above at note 8.
175 High “Good, bad and wrongful”, above at note 30 at 797 and 800–01; SNN, ibid.
176 Above at note 8.
177 Above at note 23.
178 Above at note 38.
179 Act No 32 of 2007, as amended by Criminal Law (Sexual Offences and Related Matters) Amendment Act, Act No 5 of 2015.
180 Id, sec 15(1)(a); Bhamjee, ZE and Strode, AE “Amendments to the Sexual Offences Act dealing with consensual underage sex: Implications for doctors and researchers” (2016) 106/3 South Africa Medical Journal 256 at 257CrossRefGoogle ScholarPubMed.
181 Criminal Law (Sexual Offences and Related Matters) Amendment Act of South Africa, Act No 5 of 2015, sec 15(1)(b); Bhamjee and Strode, ibid.
182 Kern “Trends in teen sex”, above at note 133 at 1613–14; Flynn “All the kids”, above at note 160 at 689–91.
183 Kern, id at 1613; High “Good, bad and wrongful”, above at note 30 at 797 (comment at footnote 40); Flynn, id at 689. The interchangeable application of the age gap provisions and Romeo and Juliet provisions was also apparent in WKN, above at note 27, para 8, when the court stated that, in progressive jurisdictions, “age gap is considered as a mitigating factor or a defence as the courts do consider the level of culpability where the victim and offender are almost of the same age; as this is significantly different and with situations where an adult exploits the vulnerability of a much younger victim”.
184 Kern, id at 1613–14; Flynn, id at 689–91.
185 Franklin, J “Where art thou, privacy? Expanding privacy rights of minors in regard to consensual sex: Statutory rape laws and the need for a ‘Romeo and Juliet’ exception in Illinois” (2012) 46/1 John Marshal Law Review 309 at 317–18Google Scholar.
186 W Shakespeare Romeo and Juliet (ed HH Furness, 7th ed, 1899, JB Lippincott & Co).
187 Id at 41–43 (act 1, scene iii).
188 Ibid.
189 Id at 76–77 (act 1, scene v).
190 Franklin “Where art thou”, above at note 185 at 317–18.
191 Ibid.
192 Above at note 121.
193 Ibid.
194 Ibid.
195 Kern “Trends in teen sex”, above at note 133 at 1609–10.
196 Above at note 8.
197 Penal Code (Texas) cap 22, sec 22.011(a)(2)(A)–(E).
198 Id, sec 22.011(c)(1).
199 Id, sec 22.011(e)(2)(A).
200 Id, sec 22.011(e)(2)(B)(i).
201 Id, sec 22.011(e)(2)(B)(ii).
202 Id, sec 22.011(e)(2)(A)(i) and (ii).