A Mombasa court has acquitted a 17-year-old boy who had been charged with defiling and impregnating his girlfriend, 15.
While acquitting the minor Senior Principal Magistrate Vincent Adet said prosecuting the boy alone, over a juvenile love affair is punitive and discriminatory.
He said police and prosecutors in such cases ought to view the two minors as equal victims of the offence of defilement rather than victimizing the boy.
“In such scenarios, they are rather victims of the offence and should not be exposed to punitive legislative consequences.
“It brings to the fore, the propriety of the use of criminal law to prevent adolescents from engaging in consensual sexual intercourse among themselves,” said Adet.
The Magistrate further noted that adolescents are not really sexual predators but people exploring and experimenting with their sexuality, oblivious of the legislative dangers involved.
“In such scenarios, adolescent boys invariably bear the brunt of prosecution in cases where both victims are children;
“it is even exacerbated when out of the relationship, pregnancy is realized like in this case,” he said.
He said no justice would be served by having the boy child convicted over the offense of defilement.
The girl in question had testified as the first prosecution witness, only to switch sides and testify in defence of her boyfriend.
According to her they had consensual sex and each of them should thus take responsibility for their actions.
“She clearly stated that she knew the accused and that the accused was her boyfriend, and that it was a mutual arrangement between her and the accused.
“She stated that the accused should not be punished for their mutual mistake,” the court noted.
The accused had been charged with the offence of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act.
Particulars were that on an unknown date in October 2019 at Ofisi ya Jara area in Likoni sub-county within Mombasa county, the suspect defiled a girl aged 15.