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Sexual Offences Act

The Sexual Offences Act Was Assented To On The 14th Day Of July 2006 And Commenced On The 21st Day Of July 2006. The Act Provides For Minimum And Maximum Penalties For Sexual Offences.

Section 3 of the Sexual Offences Act provides for the meaning and elements of rape.  A person commits the offence termed rape if—

  1. He or she intentionally and unlawfully commits an act which causes penetration with his or her genital organs;
  2. The other person does not consent to the penetration; or
  3. The consent is obtained by force or by means of threats or intimidation of any kind.

Section 42 of the Sexual Offences Act provides for the meaning of the term consent.  A person consents if he or she agrees by choice, and has the freedom and capacity to make that choice.

Genital organs are defined under Section 2 of the Sexual Offences Act to include the whole or part of male or female genital organs and for purposes of this Act includes the anus. 

Under section 3(3) a person guilty of rape is liable upon conviction to imprisonment for a term which shall not be less than ten years but which may be enhanced to imprisonment for life.

The offence of rape is to be differentiated from the offence of attempted rape. Section 4 of the Sexual Offences Act provides that 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.

Section 4 of the Sexual Offences Act provides that 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.

Section 5(1) of the Sexual Offences Act provides that any person who unlawfully—

  1. penetrates the genital organs of another person with —
    1. any part of the body of another or that person; or
    2. an object manipulated by another or that person except where such penetration is carried out for proper and professional hygienic or medical purposes;
  2. manipulates any part of his or her body or the body of another person so as to cause penetration of the genital organ into or by any part of the other person’s body, is guilty of an offence termed sexual assault.

Under section 5(2) a person guilty of sexual assault is liable upon conviction to imprisonment for a term of not less than ten years but which may be enhanced to imprisonment for life.

Section 2 of the Sexual Offences Act defines an indecent act to mean an unlawful intentional act which causes—

  1. any contact between any part of the body of a person with the genital organs, breasts or buttocks of another, but does not include an act that causes penetration;
  2. exposure or display of any pornographic material to any person against his or her will;

Section 6 of the Sexual Offences Act provides that it is an offence to compel or induce someone to commit indecent acts.

A person who intentionally and unlawfully compels, induces or causes another person to engage in an indecent act with —

  1. the person compelling, inducing or causing the other person to engage in the act;
  2. a third person;
  3. that other person himself or herself; or
  4. an object, including any part of the body of an animal, in circumstances where that other person —
    1. would otherwise not have committed or allowed the indecent act; or
    2. is incapable in law of appreciating the nature of an indecent act, including the circumstances referred to in section 43,

Is guilty of an offence and is liable upon conviction to imprisonment for a term which shall not be less than five years.

Under section 8(1) of the Sexual Offences Act a person who commits an act which causes penetration with a child is guilty of an offence termed defilement. The vital factor in this offence is the fact that there can be no consent by a child to a sexual act as the child is deemed to be unable of giving such consent.  In accordance to Section 8, the offence is punishable in varying degrees depending on the age of the child:

  • Achild below 11 years - life imprisonment
  • A child between 11 & 15 years - not less than 20 years imprisonment
  • A child between 16 & 18 years - not less than 15 years imprisonment

Under Section 8(5), there are defenses that an accused person can rely on. However these defenses do not apply to persons who are related to the child according to section 8(8)

These defenses are if:-

  1. It is proved that such child, deceived the accused person into believing that he or she was over the age of eighteen years at the time of the alleged commission of the offence; and
  2. The accused reasonably believed that the child was over the age of eighteen years.

Section 8(7) deals with a situation where the person charged with the offence is also a minor;- Where the person charged with an offence under this Act is below the age of eighteen years, the court may upon conviction, sentence the accused person in accordance with the provisions of the Children’s Act.

Section 9 of the Sexual Offences Act provides that a person who attempts to commit an act which would cause penetration with a child is guilty of an offence termed attempted defilement and is liable upon conviction to imprisonment for a term of not less than ten years.

This offence envisages a situation where two or more people rape an adult person or defile a child. Section 10 of the Sexual Offences Act provides that any person who commits the offence of rape or defilement under this Act in association with another or others, or any person who, with common intention, is in the company of another or others who commit the offence of rape or defilement is guilty of an offence termed gang rape and is liable upon conviction to imprisonment for a term of not less than fifteen years but which may be enhanced to imprisonment for life.

HELP! I HAVE BEEN SEXUALLY ASSAULTED

WHAT TO DO IF YOU HAVE BEEN RAPED OR SEXUALLY ASSAULTED

As soon as you can, go to a safe place where the attacker cannot reach you. Call the Police ON 999/ 112/ 911 if you feel you are still in danger. Call a person you trust to give you support. They can come to meet you where you are or at the Police Station or Hospital. They can bring you a change of clothes because you will need to remove your clothes at the hospital and leave them for examination. They can also bring your ID or Birth Certificate (for persons under 18 years) or other form of identification if you do not have it with you. The hospital and the police will need these.

  1. DO NOT TAKE A BATH, EAT, DRINK, WASH YOUR HANDS OR BRUSH YOUR TEETH or clean yourself up until after you have been examined in hospital (This is because you may wash away useful evidence that can be used to catch and convict the person(s) who have violated you. DO NOT move or clean anything in the room or area where the assault took place.
  2. Either Call the Police 999/ 112/ 911 if you are unable to move OR where possible go to the nearest Police Station and make a report. Make sure that you are given an OB (Occurrence Book) Number, a Police Abstract, a P3 (Medical Examination Form). You can also download the Abstract and P3 forms from the Police Website here and go with them in advance to the Police Station.  
  3. You will be sent to the Hospital for examination, and for the P3 form to be filled. A police officer may escort you to the hospital. The medical examiner will fill a third form called the Post Rape Care Form (PRC). They will give you one copy and give the police another copy.
  4. If you suspect that you were drugged before or during the attack, tell the medical examiner so that they can take blood and urine samples from you.
  5. After your medical examination is over, remove and keep each item of clothing you were wearing at the time of the incident (including your panties) in a separate paper bag (not plastic). You will give this to the medical examiner or Investigating Officer of the Police who will be assigned to your case. They should be taken to a lab for forensic testing to help prove your case.
  6. There is a chance that you may have been infected with a sexually transmitted disease. Talk to your medical examiner to take your blood for testing and to give you Post Exposure Treatment within 72 hours of the attack. You will need to go back for testing after some weeks to be certain that the treatment worked. The medical examiner will advise.
  7. There is chance that you may have been made pregnant if you are a woman. Talk to the medical examiner to give you the necessary treatment to prevent the pregnancy.
  8. Write down or have someone help you to write down everything you can remember about the attack, including the description of the assailant(s). This will be used by the police for their statement. Keep a copy for yourself in case you need to give evidence in future.
  9. GET treatment for any other injury you have sustained and DO TALK to a counsellor who is trained to deal with rape cases. It will go a long way in helping you recover.

You can also reach out to the Gender Violence Recovery Center from their website http://gvrc.or.ke/ and seek help from their National Toll Free Hotlines: 116 (Child Abuse) and 1195 (Gender Based Violence)

Other agencies that can help are:

http://covaw.or.ke/

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