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Consenting to sexual intercourse at 12: Shouldn't we think again
Justice for Children Trust
October 18, 2012

Yes, the law criminalises having sexual intercourse with a child under the age of 16 but above 12. How adequately though is this provision in our criminal law protecting the girl child? A close analysis of a case involving abuse of a 13 year old from one farming community shows the glaring gaps that exist in the current legal and administrative set up.

The minor child got involved with a 20 year old man at the beginning of this year and began having a consensual sexual relationship with him. She then fell pregnant in July 2012. Her mother sought audience with the responsible man who indicated that he would pay some damages and marry the young girl. She was happy with this arrangement and did not mind her daughter dropping out of school to get married. The young girl was 2 to 3 weeks pregnant then. The matter was not reported to the police because according to the woman, the acceptance by man of her daughter amounted to no liability on his part. The issue became an offence when the man chased her daughter away sometime in September 2012 after deciding that she was too young and that it would be better to marry an older woman. According to the girl, the two of them, herself and the older woman, stayed together for some weeks as his 'wives'.

The mother only felt compelled to report the matter as a criminal offence after her daughter had been chased away from the man's home. She indicated that she had even consulted some community neighbours who had advised her to leave the girl at the man's place. Most people in the farming community she was staying in only encouraged her to make a report to the police after the minor had returned home. By then the pregnancy was 3 months old. The medical report produced in court showed that she was pregnant. Nothing else was done about the pregnancy up to the time the matter was finalised in court on 21st of September 2012. The court record shows that the accused person was sentenced to a suspended term of imprisonment of 3 months. That was as far as the justice delivery system could go in assisting the minor child.

She is still pregnant. She is now in her 4th month and her chances of returning to school even after giving birth look slim. The mother indicated that she did not know who to approach for assistance. She wants the man to be imprisoned for refusing to marry her daughter. According to her, the issue of making her pregnant at 13 is only becoming an offence now because he has denied responsibility. No one advised her of other options open to her. That she could seek damages or that she could approach the same courts for termination of pregnancy or that in the event that the pregnancy is too late to be terminated, that she could apply for maintenance after the birth of the baby; all this was never explained to her. Now the minor child is in her 4th month and it might be too late to terminate the pregnancy. She is now a school dropout and it is highly likely that she will just end up being a Form 1 dropout. She now begins the lonely and tedious journey of being a mother at 14. At court, the case is successfully closed as a completed case.

That was far as far as the justice delivery system could go. No one took up the baton of assistance from there. The questions that need all interested parties to think about are many. Amongst these are;

  • What does the future hold for this child who is going to have another child soon?
  • What about her right to education?
  • Who is responsible for a child whose rights have been violated so that she receives meaningful and holistic assistance?
  • Is the girl child being adequately protected by the current legal and administrative set up considering that the crime is not as serious as that of rape? Consent or its absence is the deciding factor.
  • Why does it look like at the end of the day, the child seems to be in far worse situation than she was even after going through some form of assistance?
  • Who are the key players who should come to the rescue of this vulnerable child, who is now even more vulnerable because of her current situation?

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