Here is an article written by Elvis B. N. Abenga, an advocate at BLOC. The story is one of a boy whose trial outcome favored the suspect because of his age and “inability to have carnal knowledge”.

BY Elvis B.N.Abenga LL.M

Over the years, from the early medieval ages, there has been a cry for women emancipation. From the time of the enactment of the Married Women’s Property Act of 1870, to the advent of the feminism movement, great focus has been on women rights and empowerment. The overall concentration on the rights of women and girls, and the movement promoting affirmative action, has led to a situation in which the boy child has suffered neglect. The neglect is not only in the area of socio-economic rights, but is also reflected in the criminal justice system where the girl and the woman have more say than the boy child. This article seeks to illustrate instances in the criminal justice system where the boy child is left seule (alone) to face a system that is pro-girl.

To start us off, let me give a story of a young little boy I will call Pierre (not his real name). Pierre was a very inquisitive boy while growing up. He loved music and would often sing his heart out to many tunes, some of which he had composed himself. Pierre always dreamt that he would one day become a pianist. Pierre was also a Christian who was deeply religious. He loved to seek for answers to the many questions of life. Pierre and his family lived in one of the ghetto areas of Eldoret. His parents were often so busy trying to edge out a living that they would live Pierre at home with a nanny who would take care of him and ensure that he is fed.

One day, as fate would have it, the nanny decided that it was time for Pierre to learn some few adult concepts. She would lay Pierre down on the bed and cajole Pierre to consent to indecent acts with her. Pierre would resist, of which time, knowing that music was Pierre’s weakness, she would start singing doleful songs on how Pierre would burn in hell for resisting her. She told Pierre that she was a prophet sent to take people to heaven, and that she would only take him to heaven if he agreed. Sadly, being overwhelmed with duress and undue influence, Pierre would yield. After all, nobody wants to burn in hell, especially a 5 year old boy right?

This would happen for a period of about 6 months. Pierre could not tell his parents what was happening because he did not want to burn in hell. Until one day, the cat got out. Pierre started to bleed from his genitals and had to be rushed to the hospital. At the hospital he had to finally lift the lid of the pot and disclose what was happening. At the point of disclosure, Pierre knew in his mind that he had just booked himself a first class concord ticket straight to hell.
The nanny got arrested and was charged in court under the Penal Code (the Sexual Offences Act had not yet come to force). However she raised a very powerful defence, a defence that was based on Section 14 (3) of the Penal Code which provides that a male child under the age of 12, is presumed not to be capable of having carnal knowledge. How could this 5 year old boy then have carnal knowledge with her? She painted herself as the victim in this situation, a victim of witch-hunt and a deliberate plot by Pierre and his parents to have her arrested and locked up. The court believed her.

This story points to a horrific reality that the boy child faces. A deep maze where he has to wade through, and a path which, like quicksand, threatens to slowly swallow him up. No marvel the boy child grows up with great distrust, with the harbored erroneous belief that the world is against him, and so he must be against the world.

In manhood, a man has a near impossible task to prove that he has been raped or sexually assaulted. This is because of the biological structure of men that would make it not possible for carnal knowledge to happen without arousal. This is notwithstanding the fact that a man can be aroused without consent and certainly without his control.

A question then becomes, who shall speak for the boys and men? Hopefully we shall.