Sexual consent is everything

Rape, defilement and any other forms of sexual violation are not only unlawful, but are demeaning, are brutal, are cruel and they’re not something to be wished on any human let alone be condoned and apologized for by society.

We are not making this stuff up when we say that the rape culture has deeply taken root in this lovely country of ours. We do not wake up and make noise because we love to make noise. We are actually speaking from a point of knowledge, a point of exhaustion, and a point of anger. We are livid.

Livid because many of us have become complacent and complicit to sexual violations happening in our homes, workspaces, in church, in our communities, in transit and basically everywhere. We are livid because we make light of these heinous acts and trivializing the fact that they are happening. And if we are not blaming and silencing victims, we are exonerating perpetrators, and lecturing women, on how they should dress, walk, talk, seat etc.

A sad statistic by the Ministry of Health from March to June 2020 showed that there were over 5000 reported rape and defilements cases, with 70% of the victims being girls below the age of 18 and 95% of the perpetrators of these cases being men. We are not cooking up these numbers. This is the sad reality on the ground.

What many people don’t know or they know and just don’t want to practice is that: Penetration of any kind without an express YES to the penetration amounts to RAPE.

Consent for Penetration that is given and later withdrawn and penetration continues is RAPE.

Penetration that is consented to by duress, threats and or intimidation is RAPE. Penetration also extend to a specific body part, if you use that consent to penetrate another body part, that is RAPE.

Penetration with an under-age is defilement.

Penetration with a relative is incest.

So what is Consent?

Consent is defined in Black’s Law Dictionary as the agreement, approval, or permission to an activity or purpose especially given voluntarily by a competent person. Express consent is defined as consent that is clearly and unmistakably stated. Implied consent is consent inferred from one’s conduct rather than one’s direct expression, while informed consent is a person’s agreement to allow something to happen, made with full knowledge of the risks involved and the alternatives.

Thus Consent or lack thereof is an important element in sexual offences.

In our Laws, Specifically-The Sexual Offences Act, 3 of 2006, an individual consents if he or she agrees by choice, and has the freedom and capacity to make that choice. Freedom here means free‐will and the ability to make a decision as to whether or not to take part in the sexual activity at the time in question, in the absence of coercion or deceit. And capacity relates to age and mental abilities to engage in a sexual activity.

The Act further says that a sexual act is unlawful if it is committed

in any coercive circumstance- which include use of force, threats of harm, abuse of power or authority to the extent that the person in respect of whom an act is committed is inhibited from indicating his or her resistance to such an act, or his or her unwillingness to participate in such an act;
under false pretenses or by fraudulent means;
in respect of a person who is incapable of appreciating the nature of an act which causes the offence.

This therefore goes to say that consent to a sexual activity is mandatory. This sexual activity has to be between two consenting adults who are not related by blood, otherwise one will be committing an offence called incest. An adult under our laws being any individual above the age of 18years.

There is also something called drug or alcohol‐induced rape where one engages in a sexual activity having taken a substance without their consent, which has capacity of causing or enabling them to be stupefied or overpowered at the time of the relevant sexual activity.

Can Consent be withdrawn?

Yes, it can. It can be withdrawn by either party who had initially consented to the sexual activity and it can be withdrawn at the start of the sexual activity or after the start of the sexual activity.

This then begs the question why one can do that to the other, others say its ‘cruel and an unusual punishment’, torturous even. In this day and age, one thing adults need to learn is self-restraint and an unwavering understanding that a NO is a no and STOP means STOP.

Let it be known that ignorance is not a defense, you will go to jail for failure to respect a NO or a STOP. Our Kenyan precedents are quite clear on that, a complainant will only need to demonstrate to the court that they withdrew consent before the sexual activity and or during the sexual activity.

Which brings me to say, lets learn and teach our children, especially the boys and young men about self-restraint, mutual respect and general decency towards girls and women. Let us inculcate in them the importance of having these virtues for their own good and that of others in society.

Parting shot.

Let both men and women continuously and consistently take part in these conversations for the benefit of us all. Let us talk to our kids and young people and even adults in our spaces about the various sexual violations, what constitutes them and how to avoid them. In the same vain, let us call out perpetrators, speak out against these vices and seek justice for victims because a sexual violator leaves a victim with a permanent scar, an emotional and physical scar. And some victims never get to live. Life robbed by a sexual violator should never happen.

Let us build a Society with NO SEXUAL PREDATORS. We can do better.