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. Objective • To find out whether the Sexual Offences Act had exhaustive provisions addressing child sexual violence. 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 • The Sexual Offences Act repealed sections of the Penal Code that dealt with child sexual violence.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 Imprisonment for not less Offences with a than 5 years or a fine of Child 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 Imprisonment for not relating to Position of less than 10 years Authority and persons in position of Trust 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