Defilement is any kind of sexual act performed by an adult on a person who has not yet attained the age of majority (below 18 years).
It could also be a case of consensual sexual activity with a child.
Reports from the Office of the Director of Public Prosecutions show that cases of defilement are on the rise with over 11,000 cases of sexual violence reported in 2022 alone.
In the wake of the increased incidents of sexual and gender-based violence in Kenya, it is advisable to know what legal steps to take and win the case if you or a loved one falls victim of the menace.
Below are some of the tips on how to successfully file a case and win a defilement case in Kenya.
The Procedure of Filing a Defilement Case in Kenya
Once the act has been committed, the victim or their representative should report to the nearest police station, fill the occurrence book (OB) with details of the incident.
After that, the police hunt down the suspect, arrest and put them in remand as investigations go on waiting for presentation in court within 24 hours.
Once the investigations are complete, the file is forwarded to a legal prosecutor for commencement of the court proceedings.
Penalties Applicable For Defilement Offenders
Once the investigations are over and there’s enough evidence to prove beyond reasonable doubt that the accused person is guilty of the offensive act, the court judge sentences the offender to a jail term according to the law.
The jail term depends on the age of the minor involved in the defilement incident.
If the minor is 11 years and below, the offender is jailed for life.
If the young one is aged between 12 and 15, the applicable sentence is up to 20 years and a 15 years’ jail term in the child is 16 to 18 years old.
According to section 8(1) of the sexual Offences Act No. 3 of 2006 of Kenya Law, the offence of defilement has three main elements including age of the victim (minor), penetrative act, and accurate identification of the offender.
Failure to prove these three elements before a court of law may lead to a defilement case being thrown out.
Possible Defenses against Defilement Cases
It is possible for the suspected defiler to win the case against the complainant.
For instance, if a defilement suspect can prove before a Kenyan court of law that the “minor” acted as an adult or lied that they are aged 18 and above, they can win the case.
The accused can also win the case if they’re able to prove that they were falsely accused of wrongdoing.
How to Win the Case
For the complainant to win the case, they have to provide all the required evidence to prove beyond reasonable doubt that they were defiled.
Some of the most important evidence that one can provide include:
- Medical reports
- DNA samples
- Records of conversation or interactions between the minor and the perpetrator
An important yet very important of collecting evidence is reporting the case. It is critical to report the case immediately it happens to the nearest police station. This will enable you to collect the needed evidence with ease and even identify the perpetrator.
Having legally viable witnesses and a good lawyer to support the case is also an added advantage.
A good lawyer will not only help you build a strong case but will also cross-examine and argue the case convincingly.
When presenting your testimonies, it is critical to remain truthful and consistent. Avoid the temptation of presenting exaggerated facts as it may weaken your case.
Finally, it is critical to seek counselling and support for the victim as you continue with the case.
See, defilement can be a very traumatic experience, so counselling and support can go a long way in helping the victim cope up with the emotions and psychological effects of the experience—which can also be critical in helping winning the case, especially when it comes to answering tough questions from the defense counsel or prosecutor.
Potential Challenges When Trying To Win a Defilement Case in Kenya
More often than not, defilement cases, like any other court case in Kenya, may be marred by cases of judge, police or prosecutor bribery to destroy evidence or even kill witnesses.
The police officers might also be uncooperative in booking the case.
It is not uncommon to have a defilement case dropped unfairly or dragged on for years due to interference with witnesses.
The accused could also appeal the case if they feel that the judgement passed by a lower court judge was too harsh.
That means another round of hearings in the appellate court which poses the risk of losing the case for the victim.
Settlement of Defilement Case Out Of Court
As much as a defilement case can be settled out of court, legal experts and other leaders have advised against it.
The main reason is that out of court case settlement exposes witnesses and defilement victims to intimidation and the perpetrators of the act hardly get a punishment that is harsh enough to teach them a good lesson.
Most likely, the offenders will repeat the act if not arrested and arraigned in a court of law.
Allowing them to stay within the community only exposes more minors to the heinous behavior of the defilement suspect.
How Long Does It Take For A Defilement Case To Be Determined In Kenya?
It depends on a number of factors. For example, how satisfactory the evidence provided is or the severity of the case could determine the duration it takes to convict an offender.
Other factors include the time taken to arrest the accused person, bail and bond decision making.