The proposed increase of consent age in defilement laws takes parenting responsibilities from parents to government

Owen Nsala | Wednesday October 18, 2017 13:58

It is an all encompassing law which includes both boys and girls I would assume.

I had an occasion to listen to people engage leisurely on the topic and figured just how misunderstood and confusing the offence of defilement is to people vis-à-vis the offence of rape. It is important to note that the point of departure on the two offences is that with regards rape, the law suggests that the perpetrator must have sought sexual gratification of another without their consent. As regards defilement, the perpetrator must have had sexual intercourse with a person below the age of 16.

Whether the below-16 child consented or not is neither here nor there. It does not matter whether the below 16-child offered his or her consent. The law presupposes that a person below the age of 16 lacks the capacity to consent to sexual intercourse.

It therefore becomes paramount that the underlying issue with regards to defilement is the capacity of a minor to consent to sexual intercourse. All along and to date, prior to the amendment of the Penal Code (assuming the law will pass) those above the age of 16 were deemed to be able to consent to sexual intercourse. What has since changed? Is the law a necessary amendment, or a mere populist stunt by politicians? Does it serve the intended purpose (if any) and will it solve the problem of intergenerational sex?

Before attempting to answer the questions I posed above, I need to clear the air with regards to sexual intercourse between children under the age of 16. If both had actively participated and had consented to the act, then there can be no offence as it would be hard to locate a complainant. The only available charge would be that of rape as between the two under-16s if it is found that one of the two acted by the use of force and there was no consent.

As regards a 17-year-old having consensual sexual intercourse with a person below the age of 16, then the offence of defilement arises. Our courts have in their wisdom convicted those 17-year-olds of defilement, but refused to sentence them to the mandatory 10 years in prison as dictated by law. It is an issue of great concern that one hopes the new amendment will take care of. My first concern as regards raising the age of consent to 18 years of age is that it fails to speak to the effect of the raise on intergenerational sex. It fails to take into account that in this day and era, 17-year-olds are now students at universities, and no doubt sexually active and involved. Should the bar be raised that high? Are we suggesting that a student at university doing his fourth year is too old for one doing first year such that the one doing first year cannot consent to sexual intercourse when she can sign for her bursaries and scholarships without the assistance of the guardian? Does the purported amendment then mean that 19-year-olds must look beyond their shoulders and engage in sexual intercourse with those older than them?

I am yet to ascertain the cause behind the increase of the age of consent. If the suggestion is that the law is meant to protect children from being used or abused by the elderly, then the law must come out as clear as that. The law must similarly take into account that fact that these kids who are being sought to be protected are sexually active and must come with measures to protect those that may fall victim to these kids. Those are the below 20s but above 18. It happens. I speak from courtroom experience when I say that a lot of defilement cases are by their nature acts of misfortune. Some who are reported of such offences, are misled by the young one into engaging in sexual intercourse and only get caught when the parents discover that the girl has been missing all night.

The amendment strikes me as an admission by society that we have failed to groom our children into responsible kids who are willing to abstain and wait for the so-called right time. The amendment says to me, we have lost our moral fabrics and seek to be micro-managed by the use of stringent laws. It is an inescapable reality that we have given up on the ability of parenting and seek guard and protection from the state, when in actual fact we must be teaching our children what is supposed to be right or wrong. To put blame on those that engage in sexual intercourse with the young and conveniently fail to accept bad parenting is unacceptable. The amendment to the law is in all likelihood going to unnecessarily overburden the state with many claims of defilement. The amendment is simply  a populist call to attend to our laziness as parents.