Mombasa court yesterday acquitted a 17-year-old boy who had been charged with defiling and impregnating his girlfriend, 15.
While acquitting the minor (name withheld), Senior Principal Magistrate Vincent Adet said prosecuting the boy alone, over a juvenile love affair is punitive and discriminatory.
He said police and prosecutors in such cases ought to view the two minors as equal victims of the offence of defilement rather than victimising the boy. “In such scenarios, they are rather victims of the offence and should not be exposed to punitive legislative consequences. It brings to the fore, the propriety of the use of criminal law to prevent adolescents from engaging in consensual sexual intercourse among themselves,” observed Adet.
Senior Principal Magistrate further noted that adolescents are not sexual predators but people exploring and experimenting with their sexuality, oblivious of the legislative dangers involved. “In such scenarios, adolescent boys invariably bear the brunt of prosecution in cases where both victims are children; it is even exacerbated when out of the relationship, pregnancy is realised like in this case,” he said.
Adet also observed that in the case before his court, no justice would be served by having the boy child convicted over the offence of defilement. The suspect in this matter is hereby acquitted of defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act as well as in the alternative charge where the accused is charged for committing an indecent Act with a child contrary to section 11(1) of the Sexual Offences Act under the procedural provisions of section 215 of the Criminal Procedure Code,” he stated.
Court noted that the case was one of the many typical cases of juvenile love where the victim and the perpetrator are ignorant of the consequences of their actions.
Defence of her boyfriend.
In the case, the court noted that the girl in question had testified as the first prosecution witness, only to switch sides and testify in defence of her boyfriend, maintaining that they had consensual sex and each of them should thus take responsibility for their actions. “She clearly stated that she knew the accused and that the accused was her boyfriend, and that it was a mutual arrangement between her and the accused. She stated that the accused should not be punished for their mutual mistake,” the court noted.
The accused had been charged with the offence of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act. Particulars were that on an unknown date in October 2019 at Ofisi ya Jara area in Likoni sub-county within Mombasa county, the suspect defiled a girl aged 15. The majority is however now confident that the boychild has seen light at the end of the tunnel.
