Does the Sexual Offences Act Safeguard

Against Child Sexual Violence?

Buluma, A.P.B. Esq.

Liverpool VCT, Care & Treatment, Kenya

SV Conference

29th September – 1st October, 2008

Background

• Prior to the enactment of the Sexual

Offences Act, all sexual offences were

listed in the Penal Code.

• They were known as offences against

morality.

• There were no exhaustive provisions to

deter/prevent child sexual violence.

• The primary provision on child sexual

violence under the penal code was s. 145.

• It addressed defilement of girls under 16

years.

• Not exhaustive; what of child prostitution?

Child pornography? Child trafficking? e.t.c.

• No minimum sentences prescribed.

The Sexual Offences Act

• Act No. 3 of 2006.

• It was assented to on July 14, 2006 and

came into force on July 21, 2006.

• Its purpose is to provide comprehensive

legislation addressing sexual offences.

• Does it have exhaustive provisions to

prevent child sexual violence?

• Does it cater for the different sexual

offences that can be committed to a child?

• Does it deter child sexual violence?

Methodology

• A desk review of

the Sexual

Offences Act was

conducted in

August 2008.

• To find out whether

the Sexual

Offences Act had

exhaustive

provisions

addressing child

sexual violence.

Objective

Review findings

• There are 13 sections providing for 13

categories of child sexual offences.

• For each offence there is a minimum

sentence prescribed.

• The Sexual Offences Act repealed

sections of the Penal Code that dealt with

child sexual violence.

PROVISION OFFENCE SENTENCE

Section 7 Acts that Cause Penetration or Indecent acts done within the view of a Child or a Mentally Disabled person

Imprisonment for not less than 10 years

Section 8 Defilement Of a child of 11 years or less imprisonment for life Of a child of 12-15 years imprisonment of not less than 20 years Of a child of 16 – 18 years imprisonment of not less than 15 years

PROVISION OFFENCE SENTENCE

Section 9 Attempted Defilement

Imprisonment of not less than 10 years

Section 11 Indecent Act with a Child

Imprisonment for not less than 10 years

Section 12 Promotion of Sexual Offences with a Child

Imprisonment for not less than 5 years or a fine of not less than 500,000 Kenyan Shillings.

Section 13 Child Trafficking Imprisonment for not less than 10 years, and if a Juristic person a fine of not less than 2 Million Kenyan Shillings.

PROVISION OFFENCE SENTENCE

Section 14 Child Sex Tourism Imprisonment for not less than 10 years, and if a Juristic person a fine of not less than 2 Million Kenyan Shillings.

Section 15 Child Prostitution Imprisonment for not less than 10 years.

Section 16 Child Pornography Imprisonment for not less than 6 years, or to a fine of not less than 500,000 Kenyan Shillings, or both.

Section 20 Incest by Male Persons Imprisonment for not less than 10 years

PROVISION OFFENCE SENTENCE

Section 21 Incest by Female Persons

Imprisonment for not less than 10 years

Section 24 Sexual Offences relating to Position of Authority and persons in position of Trust

Imprisonment for not less than 10 years

Section 30 Non Disclosure of Conviction of Sexual Offences

Imprisonment for not less than 3 years, or to a fine of not less than 50, 000 Kenyan Shillings, or both.

Implications on determent of

child sexual violence

• Minimum sentences imposed mean the

perpetrator must be imprisoned if guilty.

• Wider scope of child sexual offences

broadens the net for catching sex pests.

• Varied categories of offender in one

offence means even the facilitators and

procurers of children for sexual offences

shall be caught.

Conclusion

• The Act has comprehensive provisions to

deter, prevent, & safeguard against child

sexual violence.

• It is a vast improvement over the

provisions of the Penal Code on child

sexual violence.

• The provisions can only be effective if

enforced/implemented.

• They can only be enforced/implemented if

the relevant parties are aware of the Act.

Recommendations

• Implementation of the provisions Sexual

Offences Act should be undertaken.

• The relevant parties: the community, the

police, & the judiciary should be

thoroughly sensitized on the provisions of

the Act.

Thank You