Rape and Sex in the Kenyan context

Of late there have been various stories in the media of rape committed on children and persons who are not only known, but are relatives of the victim. Rape is one subject that fascinates me. Firstly because it one of the few subjects that I am incapable of being fully rational about, and secondly it’s also one of the few crimes that I intimately know quite a number of victims.

In Kenyan law rape is dealt under Cap 3 of 2006 and is defined as:

3. (1) A person commits the offence termed rape if -
(a) he or she intentionally and unlawfully commits an act which causes penetration with his or her genital organs;
(b) the other person does not consent to the penetration; or
(c) the consent is obtained by force or by means of threats or intimidation of any kind.

Section 3 puts the minimum penalty as ten years and the maximum as life. Personally I’d prefer the maximum being death (but as I said earlier I am not exactly rational about this)

Section 4 on the other hand puts an interesting twist to the tale:

4. Any person who attempts to unlawfully and intentionally commit an act which causes penetration with his or her genital organs is guilty of the offence of attempted rape and is liable upon conviction for imprisonment for a term which shall not be less than five years but which may be enhanced to imprisonment for life.

Thus by law while attempted rape starts off with a lower sentence it can escalate into the maximum that is allowable as the case is when charged of rape.

Rape is such an unnecessary crime. Our society has glorified and mystified sex to an extent that some people get the impression that not only is sex a mysterious act but it confers mysterious powers on the person who carried out that act (usually male). There have been cases where people think that having sex with a virgin is a cure of sexually transmitted diseases, including HIV and gonorrhoea, or even that it will grant you success in certain ventures, and even that if you proceed on a journey, or engage in a sport, sex might bring bad luck on your endeavour. There are people who will not have sex on religious days, who will only have sex on religious day and even those who will only have sex when the star signs are potent. Some people even believe that having sex will impair your thinking and sap your strength. There is also the feeling that sex gives you power over others and many rapists consider that having forceful sex will enhance their power over their victims. Unfortunately many victims also have the same belief. On the other hand society restricts, in the name of morality, other ways of reliving sexual pressure and will frown upon a person who either goes to prostitutes or masturbates oneself. Society puts unrealistic limits on what is allowable in sex, and expects that all will adhere to this even where there is no victim.

Given the stigma associated with sex, many rape cases in this country go unreported, or if reported are only reported to councils of elders or family patriarchs and the “shame” is cleansed with arcane and superstitious rituals to prevent further curse on families. Rape, especially when it’s a man raping a female, is considered more of a stain on the family than a crime. This is especially so when the perpetrator is a member of the same family as the victim. Many African societies do not even recognise rape in the context of marriage, and they even claim that the victim has a role to play in exciting the assault and in some cases instead of giving justice to the victim they require the victim to make some sort of amends, for a consideration to the family, to appease her “sin”. The various claims of short skirts or exposed skin being a justification for heated passions are a case in point.

Prevention is haphazard and usually involves asking the potential victims to dress in a “non provocative” manner, avoid going near men or even live in seclusion so that male passions are not inflamed by the sight of a woman. For some rather strange reason men are considered unable to control themselves when faces with a sight of a woman, regardless as to the state of dress. A lot of cultures treat this as an excusable misdemeanour as they believe that the victim must have done something to excite the man and the man is understandably unable to control his reactions. This just goes to further victimise women as responsible for the crimes that are perpetuated on them.

In my rather limited personal circle I know of five women who have been raped. One was raped in the process of a robbery while the other four have been raped by close relatives. In one sad case she was repeatedly raped by her male cousins and uncles over a period of several years from the relatively young age of nine. The only action that was carried out when this was discovered was to call pastors and village elders to cleanse the bad spirits that she brought to the family. Because she developed at a rather young age it was taken that she tempted these relatives to rape her and only God, and the elders, can suitably solve this situation. Much as she seems to have recovered from the ordeal you still see glimmers of this experience from her actions and relationships with persons of the male persuasion.

The strange thing is that the law is rather strict with persons of this sort and it provides for a maximum sentence of life for these acts,

Cap 3 of 2006 of the laws of Kenya in Section 20:

20. (1) Any male person who commits an indecent act or an act which causes penetration with a female person who is to his knowledge his daughter, granddaughter, sister, mother, niece, aunt or grandmother is guilty of an offence termed incest and is liable to imprisonment for a term of not less than ten years:
Provided that, if it is alleged in the information or charge and proved that the female person is under the age of eighteen years, the accused person shall be liable to imprisonment for life and it shall be immaterial that the act which causes penetration or the indecent act was obtained with the consent of the female person.

Notice that whether consent is given or not one is liable to life imprisonment if the girl is under the statutory age of eighteen. Thus a father having sex with his daughter, or an uncle having sex with his niece, or a grandfather having sex with his granddaughter would serve a lifetime sentence as long as the girl is below eighteen years and it will not matter that the girl consented to the said act. Thus the various cases we have been seeing in the news are pretty simple. All one needs to prove is that an act of penetration occurred and the perpetrator is liable to life imprisonment. What surprises me is that this does not seem to be done. Give the severity of the punishment it is even more surprising that chiefs, elders and the police let the perpetrators to get off with the legal equivalent of a slap on the hand.

The law, on the other hand, is lenient when it comes to “committing an indecent act” with a child and only provides for a maximum sentence of ten years if that child does not pass the test of relationship.

Cap 3 of 2006 Section 11. (1) Any person who commits an indecent act with a child is guilty of the offence of committing an indecent act with a child and is liable upon conviction to imprisonment for a term of not less than ten years.

This seems to imply that if you rape a child of four years, as happened recently in Kenya, and the child is not related to you then you will be able to get out when that child is fourteen and continue molesting her. This punishment, I think, is inadequate. In a strange twist under the penal code Cap 63 section 162. Any person who:

(a) has carnal knowledge of any person against the order of nature; or

(b) has carnal knowledge of an animal; or

(c) permits a male person to have carnal knowledge of him or her against the order of nature,

is guilty of a felony and is liable to imprisonment for fourteen years:

So thus while you will get ten years for defiling a child of four years who is not related to you, you can get fourteen years for having anal consensual sex with an adult woman who does not pass the test of relationship, and you only get twenty one years if you coerced or lied to that person into having “unnatural” sex with you.

I rest my case.