Criminalizing Adolescence

Adolescents constitute 24 percent of the population in Kenya. Nearly one-quarter of adolescents living in Kenya have an unmet need for family planning. This leaves adolescents vulnerable to early and unwanted pregnancies and sexually transmissible infections. The World Health Organization (WHO) has recognized that access to sexual and reproductive health and rights (SRHR) and services is critical to the facilitation of healthy adolescent development. This is also recognized in Kenya’s Adolescent SRHR policy and international law. But in the country, adolescents involved in noncoercive and nonexploitative sex are exposed to a threat of criminal sanctions under the Kenya Sexual Offense Act (SOA). This conflict between law and policy imposes barriers for achieving equitable adolescent SRHR outcomes.

The Center for Reproductive Rights has launched a new publication, titled Criminalizing Adolescence: A Call to Reform the Sexual Offences Act, that investigates the realities behind the criminalization of noncoercive and nonexploitative consensual sex among adolescents.

Why is this publication important?

• The report provides a definition for noncoercive and nonexploitative sexual conduct among adolescents, which can be referred to as consensual sex but has remained an ambiguous and under-utilized term in adolescent law and policy.

• It explores how legal frameworks, like the Kenyan SOA, have tried to address a tension in the treatment of adolescents, who have the same rights as adults, but are also subject to special protections given their age. It shows how laws concerning adolescent noncoercive and nonexploitative sexual intercourse often reflect a punitive rather than evidence-based approach to exercising rights, effectively signaling to adolescents that engaging in consensual sex with another adolescent is not only bad — it is criminal. This creates confusion about the legality of offering reproductive health information and services to adolescent and hinders adolescent’s access to comprehensive SRH information and services.

Findings

• The Kenya SOA does not make any distinction between noncoercive/nonexploitative sex and coercive/exploitative sexual conduct between minors. It also does not make any distinction between sex between adolescent minors and sexual acts between adolescent minors and adults — all of which are classified and/or have been interpreted as criminal offences. This means that specifically under Sections 8 and 11 of the Kenya SOA adolescents are being criminalized for engaging in noncoercive/nonexploitative sex. This is incongruent with adolescent sexual and reproductive health (ASRH) policy intended to promote adolescent health status and enable them to realize their full potential. Such policy aligns with global standards and norms for recognizing adolescent autonomy, and their capacity to consent to information and services

• There is conflicting precedent in the Kenya courts around the issue of adolescent’s capacity to consent to sex.

• Other countries are also grappling with this issue, with some countries showing positive progress. In South Africa for example, there has been a “close-in-age defense” to protect adolescents who are 16 or 17 years from penal sanctions when their partners are at most two years apart in age. In Peru, the Constitutional Court ruled that a complete prohibition on all sexual conduct between adolescents was unconstitutional. In 2018, Rwanda passed a new Penal Code that decriminalizes consensual sex among adolescents who are at least 14 years. More comparative analysis is needed.

Conclusions

The report calls for a number of specific actions aimed at reforming laws to decriminalize noncoercive and nonexploitative sexual conduct among adolescents, strengthen justice actors to understand the dynamics of adolescents’ noncoercive and nonexploitative sexual conduct, coordinate efforts on adolescent policy and programs, and shift the public discourse on this issue — all of which will translate to better reproductive health outcomes for adolescents.

Read the publication here: Criminalizing Adolescence: A Call to Reform the Sexual Offences Act

For questions about the Center’s new publication, please contact Lucy Minayo – [email protected]