AFRICA NAZARENE UNIVERSITY

SCHOOL OF LAW
COURSE TITLE: CRMINAL LAW II
COURSE UNIT: LAW 202
DATE : APRIL AUGUST 2017
PLACE: RONGAI
LECTURER: DR. CHARLES A. KHAMALA

LECTURE TEN: CONSTRUCTIONS OF SEXUALITY AND BODILY AUTONOMY,

TRUST AND INTEGRITY

1. INTRODUCTION
The state exercises a significant influence over bodily autonomy generally and the construction
of sexuality in particular. Laws regulate the age of consent to sexual intercourse and the
nature of consent required for medical examinations, cosmetic and ritual procedures e.g.
FGM, tattooing and even procedures relating to childbirth. Citizens are regulated by norms of
sexual (intercourse) practice and cannot engage in activities inconsistent with those norms. For
example, under Article 45 of the constitution: “Every adult has the right to marry a person of
the opposite sex based on the free consent of the parties.” Sexual offences are treated as a
distinct category from other violent crimes because they raise issues about bodily autonomy,
particularly about consent and when consent can be “valid”. Furthermore, regulating sexuality
plays an important role in maintaining the institution of the family which is of economic as well
as of social significance. Hence activities such as criminalizing rape were initially sanctioned
by the criminal law to prevent extra-marital intercourse. Not until a decision by the English
House of Lords in 1991 was marital rape recognized as an offence.
The concept of consent or autonomy pulls in two directions. Bodily autonomy can
demand protection, first, of one’s choices and, second, protection against interference by others.
Protection of one’s choices can include freedom to engage in (possibly) self-harming activities,
such as prostitution, surrogacy, and euthanasia. Protection against interference by others would
mean prevention of rape, as well as other forms of assault. Should a person be subject to

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medical interference which could prolong life? How about contraception and abortions? Should
they be made available, on demand? Can consenting adults engage in sado-masochism?
Autonomy is closely connected to the notion of trust. Trust is a complex multi-
dimensional concept. Interpersonal trust revolves around interaction between individuals e.g.
intimate and emotional ties around family and friends. Social trust involves the ways and extent
to which we trust institutions such as the criminal justice system or other experts. Can or should
criminal justice intervene effectively in domestic violence issues? Similarly low conviction
rates for rape may reflect declining trust in criminal justice with intimate information.
Abortion and euthanasia require decisions of engaging with prosecution of those who take life.
Do we trust individuals or medical experts? Should individuals be entrusted with decisions of
engaging with prostitution or pornography? These issues depend on the extent to which a society
embraces liberal values or prefers conservatism. Invariably victims of intimate crime attempt
to shift their trust to the criminal justice system. Hence substantive reforms to sexual offences
reflect increasing liberation and changing social attitudes to sexuality. The liberal state until
recently was reluctant to intervene in the private realm hence guaranteeing autonomy. However,
attitudes towards domestic violence and marital rape indicate that paternalism may be
advantageous to protect vulnerable victims from exploitation or oppression.

2. THE SCOPE OF SEXUAL OFFENCES

The scope of sexual offences is always controversial and raises the question of what purpose the
criminal law serves in this area. Some English scholars contend that “the overriding objective
which the law should seek to pursue is the protection of sexual choice”. However, unlike
English law which protects a woman’s right to choice of whether, when and with whom to have
sexual intercourse, under the Kenyan Sexual Offences Act no. 3 of 2006 the offence of rape can
be committed by persons of either gender on a person of either gender.
The second controversy is whether it is appropriate to consider sexual offences as a
separate category of violent assaults. Perhaps it is belittled instead of being considered as
causing grievous bodily harm, since violence is often a part of sexual offences. Misuse of
sexuality constitutes uniquely harmful invasion of privacy and damage to a person’s identity,
in addition to infringing the victim’s sexual autonomy.

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Importantly, the popular perception of rape is misleading. The traditional image of rape being a
crime launched by a stranger against a woman out walking alone at night belies studies
indicating that over 2/3 of victims are raped by people they know. This fact causes problems for
prosecutors who need to show beyond reasonable doubt that the victim did not consent to the
sexual intercourse. The difficulty of proof of the victim’s consent reveals the ever-present
conflict between the interests of the victim and those of the accused, and is particularly visible
in the procedural difficulties raised by the proof of these offences. The debate concerning
sexual offences tends to revolve around issues which illustrate these conflicts of interest: the
question of consent; the appropriate mens rea; and even whether acts committed by consenting
adults in private should be penalized.

3. HISTORICAL EVOLUTION OF THE CORROBORATION CONTROVERSY IN

KENYA
The basis for corroboration in sexual offences is that it is possible that rape charges can be
trumped-up since it is an offence which is committed away from public view. The law of
evidence has thus developed special rules to govern proof of rape and other sexual offences. In
Maina v Republic [1970] EA 370 (Mwendwa CJ and Madan J), corroboration was held to be an
essential requirement in sexual allegations. It is dangerous to convict on the evidence of
woman or girl complainants. This is because human experience has shown that girls and women
sometimes tell stories which are entirely false and easy to fabricate (for all sorts of reasons and
sometimes for no reason at all), but extremely difficult to refute.
In Mukungu v Republic [2002] 2 EA 482 (Kwach, Bosire and O’Kubasu JJA) defined
corroboration as other evidence to give certainty or lend support to a statement of fact. In the
context of sexual offences, it supports the testimony of the complainant. They held that the
requirement for corroboration in sexual offences affecting adult women and girls is
unconstitutional to the extent that the requirement is against them as women or girls. It was
discriminatory on the basis of sex.
Earlier cases such as Republic v Oyier [1985] KLR 353 (Hancox and Nyarangi JJA and
Chesoni Ag JA) had identified several pieces of evidence to support a the complaint that
penetration took place without consent: (a) she resisted physically; (b) she got beaten and
punched by the respondent to coerce her to submit to the act; (c) she had objected to the

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intercourse because she feared she could get pregnant; (d) she had intercourse while still
wearing her under pants; (e) she sneaked out and took the risk of running from the
respondent’s home at night without her property; and (f) the respondent never bothered to look
for her after she ran away. In Waweru v R [1988] KLR 727 (Nyarangi, Gachuhi JJA and
Masime Ag JA) it was held that the distressed condition of the complainant is capable of
amounting to corroboration. In that case the complainant appeared at the manager’s house
without any clothes on, distressed, terrified and reported to him how she was attacked by the
appellant. The manager saw bruises on her body. This corroborated her evidence of complying
with the appellant’s commands out of fear of imminent danger. In Odhiambo & Others v R
[2005] KLR 176 (Omolo, Githinji and Deverell JJA) the court convicted based both on
identification parade evidence as well as a corroborating medical report. They were
convinced by the unshaken testimony about the adequacy of the light at the crime scene, the
fact that the appellant had been with her for quite some time and she described their roles in
detail and they even escorted her back to where they found her.
In Benjamin Mbugua Gitau v R [2004] eKLR the dictum in Mukungu that there are neither
scientific evidence nor research findings that as a general rule women and girls give false
testimony or fabricate cases, was cited with approval. However in PME v R [2003] eKLR the
High Court disagreed since the remarks in Mukungu were obiter dicta. The current position
remains that courts continue to require corroboration in sexual offences.

4. SEXUAL OFFENCES LAW

The law on sexual offences in Kenya is governed by the Sexual Offences Act No. 3 of 2006,
distinctly different from the UK Act with a similar name, repealing in our case, much of chapter
XV of the Penal Code on offences against morality. It was motivated by a need to modernize
out-dated definitions. There was a desire to achieve gender balance. – the initial rape offences
tended to protect females, but nowadays they also protect males and criminalize acts by
females. Secondly, the discretion allowed by merely a maximum of life imprisonment sentence
for rape permitted light sentences. Similarly, defilement had no maximum sentence. Thirdly,
the Sexual Offences Act creates numerous new sexual offences such as gang rape, sexual assault,
sexual harassment, child pornography and trafficking for sexual purposes. Other offences
regulating the activity of prostitution are retained in the Penal Code.

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5. RAPE

(a) Definition
Under s 139 of the Penal Code (now repealed) the definition of rape was as follows:
“Any person who has unlawful carnal knowledge of a woman or girl, without her
consent, or with her consent if the consent is obtained by force or by means of threats or
intimidation of any kind, or by fear of bodily harm, or by means of false representation as
to the nature of the act or in the case of a married woman, by personating her husband, is
guilty of the felony termed rape”
Section 3(1) of the new Sexual Offences Act defines rape as follows:
“A person commits the offence termed rape if:
(a) He or she intentionally and unlawfully commits an act which causes
penetration with his or genital organs;
(b) The other person does not consent to the penetration;
(c) The consent is obtained by force or by means of threats or intimidation by any
kind.”
In simple terms, it is having sexual connection with a person without the person’s consent. Its
principle elements are penetration of the victim’s (genital organs) with either the male or female
sexual organs, and the lack of consent of the victim.
The definition of rape in the Sexual Offences Act construct a crime that can be
committed by a person of either gender against a person of either gender.
It can also be committed by adults against children, in Erica Ngobi v Reginam [1953] 21
EACA 154 (Sir Nihill P, Sir Warley VP and Pearson Ag CJ) the appellant was convicted of rape
of a 7-year old girl. The court observed that although it is preferable where the victim of a
sexual offence is a minor, to charge the offender with defilement rather than rape, as the
element of consent could not be a defence available to the accused, it is not wrong to charge him
with rape and convict him accordingly if there is sufficient supporting evidence.

(b) The Actus Reus

The actus reus elements for the offence of rape is the penetration of the victim’s genitalia with
either the offender’s male or female organs. Penetration is defined as “the partial or complete

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insertion of the genital organs of a person into the genital organs of another person.” It becomes
an offence when done without consent of the other person. Genitalia is defined as including the
anus – unlike the previous definition under the Penal Code. In Mohamed v Republic [2011] EA
301 (Ramadhani CJ, Munuo and Mjasiri JJA) held that lack of medical evidence does not
necessarily mean that rape is not established so long as there is other evidence pointing to the
commission of the offence, particularly of penetration. Penetration always is the cruse of the
matter, however slight. This was held in Mwangi v R [1984] KLR 595 (Kneller JA, Chesoni and
Nyarangi Ag JJA). More recently in Andrew Apiyo Dunga & Others v R [2010] e KLR the
evidence of penetration was placed before the court indicating that the victim was no longer a
virgin. It was contended on appeal that notwithstanding that her private parts were torn, there
were no spermatozoa found matching the appellant. This argument was dismissed on grounds
that the offence was complete upon unconsented penetration by the male organ of the female
genitals.