The remarkable uncertainties surrounding Section 138

Introduction

Our previous blog articles explained the challenges surrounding the new Section 138 of the Penal Code. In the meantime, I undertook a little survey to sample the views of a prosecutor and a judicial officer (names and identities withheld). I wanted to find out what they think about the new provision. In this blog article, I discuss the opinions of the two public officers as we continue to generate debate on whether the new law should be sustained or reviewed.

The law is unjust in the opinion of both the prosecutor and judicial officer

The first thing I got from the conversations with the prosecutor and court official is that the law is unjust. This is because it denies young people the opportunity to experience the sexual intimacy necessary in adolescence.

Instead of the law dealing with the problem where older people take advantage of the younger ones to exploit them sexually, the law has created another challenge. The older peers bordering the age of majority, between 19 and 18, are criminalised for engaging in consensual, non-exploitative and non-abusive sex with peers about to cross the line from childhood to adulthood, that is, 16 and 17. But what’s the point here? Indeed, the court official asked, “What is magical about the line separating the 18-year-old from the 17-year-old when it comes to sexual pairing?”

The prosecutor and court official shared that the law should have considered it normal for an 18-year-old to be sexually intimate with a 17-year-old. Society would not question such pairing. The judicial officer strongly believes that although religion and culture do not look favourably or even condemn sex before marriage, it is normal for young people to have sex. Consider college cultures; for instance, sex among peers is not unusual. The judicial officer not only thought sexual conduct was expected, but it is a necessary aspect of adolescent development to engage in intimate relationships. The law cannot create artificial boundaries and go against the norm. It is dangerous, said the judicial officer, because the law goes against nature.

On another note, the judicial officer observed that Parliament addressed the gender bias by protecting both males and females from harmful sexual conduct, a shift from the old provision that protected only females. But now, the former provision prohibited ‘carnal knowledge’, which defined the offence. In the new condition, what is not permitted is ‘sexual intercourse’ with a child. The judicial officer raised the concern that this could cause problems in proving the definitional elements of the offence since it no longer requires ‘sexual penetration’. The judicial officer wondered what elements of the crime the prosecutor would be expected to prove. (This could be the topic of another blog)

Conflict with the provision on rape?

The judicial officer noted that the defence against the charge that an accused had sex with a child is not available to the adult, so if a person became 18 today and has sex with a child that will become 18 tomorrow, the accused won’t have any defence even if the age difference between them and the younger is only two days, because the law has put a strict demarcation based on the age of majority. Such a law can only cause injustice if followed to the letter.

The judicial officer also thought Section 138 of the Penal Code conflicts with Section 132 on rape. Rape means having sex without the consent of the person. Section 138 criminalises a person when sex is consensual, but the age difference is unacceptable, BUT also when sex is non-consensual. This is somewhat confusing because, as he understood it, Section 138 deals with protecting a child from exploitative sexual conduct. Sex that is not consensual is already taken care of by Section 132. This conflict should not be ignored.

Would you prosecute?

Suppose the prosecutor happens to deal with a case where an 18-year-old is accused of having sexual intercourse with a 17-year-old person. In that case, the prosecutor believes that even though he can feel sorry for the accused, he will still prosecute the person as he must apply the law as it is. It would be presumed that Parliament created a law that is, on its face, constitutional, so the prosecutor will not second-guess Parliament. The accused would be prosecuted according to the law. The prosecutor does not enjoy much discretion in this respect.

On further reflection, the prosecutor said the only way he could try to mitigate injustice is not to ask the court for harsh punishment. On whether he thought the law could be abused by angry parents wanting to punish a boy they do not like for having sex with their daughter, the prosecutor’s opinion was that this would be beyond him; perhaps the court could intervene to prevent injustice.

Would you convict?

If faced with an 18-year-old charged for having sexual intercourse that is otherwise consensual with his girlfriend or boyfriend of 16 years old, the judicial officer said he would be at pains to proceed. He said he would have to resort to Section 337 of the Criminal Procedure and Evidence Code, which empowers the trial court to intervene to avoid injustice. The first part of Section 337 says this:

(1) Where in any trial for an offence, the court thinks that the charge is proved but is of the opinion that, having regard to the youth, old age, character, antecedents, home surroundings, health or mental condition of the accused, or to the fact that the offence has not previously committed an offence, or to the nature of the offence, or to the extenuating circumstances in which the offence was committed, it is inexpedient to inflict any punishment, the court may— (a) without proceeding to conviction, make an order dismissing the charge, after such admonition or caution to the offender as to the court seems fit;

The judicial officer recalled that Justice Kamwambe did this in Yamikani Paul v Republic criminal appeal no. 16 of 2017.

So what do we do?

Regarding the way forward, the prosecutor believes it would be proper for Parliament to revisit this law and consider an appropriate amendment. The judicial officer, however, had a different view. He thinks the law should not be amended but repealed, expunged from the statute books, and replaced by a new law that understands the mischief it ought to address. A mere amendment would not do it.

Food for thought

Nyale Institute is concerned that Section 138 can cause injustice. We are not blind to the fact that many 19 and 18-year-olds have sexual intimacy with their boyfriends and girlfriends of 17 or 16, and this should not be a criminal offence if it is consensual and non-exploitative. Even if we could hope that the courts would invoke Section 337 of the Criminal Procedure and Evidence Code to save us from injustice, would it be fair to let the person go through the criminal justice machinery when we know it is already unfair?

We urge you to think and take action about Section 138 to save your son, daughter or friend from foreseeable injustice.