A Mombasa court has held that prosecuting a boy child in an underage relationship is punitive and discriminatory.
In his ruling, Mombasa Senior Principal Magistrate Vincent Adet declared that an investigator’s choice of evidence in prosecuting a boy child involved in such a relationship is discriminatory.
He added that police and prosecutors in such cases ought to view the two minors as victims of defilement rather than punishing the boy child.
The judgment revolved against a 17-year-old boy facing charges for allegedly defiling his 15-year-old girlfriend and impregnating her.
“In such scenarios, they are defilement victims 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 or counselling," Adet ruled.
Adet further pointed out that adolescents are not sexual predators but people exploring and experimenting with their sexuality not oblivious of the legislative dangers involved.
“In such scenario adolescent boys invariably bear the brunt of prosecution in cases where both victims are children; it's even exacerbated where out of the relationship, pregnancy is realized like in this case,” he noted.
Adet additionally stated that in the case before his court, no justice would have been served by having the boy convicted for the offence.
“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 pursuant to the procedural provisions of section 215 of the Criminal Procedure Code,” Adet ruled.
The court noted that the case was one of the many typical cases of underage relationships where the victim and the perpetrator were ignorant of the consequences of their actions.
In the case, the court noticed that the complainant in the matter testified as the first prosecution witness and later testified as the defence witness for the accused person.
At the time, the complainant informed the court that they had consensual sex and each of them should be blamed.
"The complainant clearly stated that she knew the accused and told the court that the accused was her boyfriend. She also noted that it was a mutual arrangement between them and therefore the accused should not be punished for their mistake," Adet told the court.
The accused only identified as OSM had been charged with the offence of defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act.
"The particulars are that on an unknown date of October 2019, the accused intentionally and unlawfully caused his penis to penetrate the vagina of MN, a girl aged 15 years at Ofisi ya Jara area in Likoni Sub-County within Mombasa County," the court papers read in parts.
In the alternative charge, the accused is charged for committing an indecent Act with a child contrary to section 11(1) of the Sexual Offences Act.
