OPINION: Timely conversation on reviewing age of consent
By Dr. Stellah Bosire
The controversial debate on age of consent, an emotive matter, recently arose again as I responded to various queries on the relevance of legal reforms in Kenya.
At the crux of this question is the unjust, unnecessary and unrealistic legal statutes which impose harsh and unfair consequences on adolescent young boys engaged in consensual, romantic sexual activity with their adolescent peers. The legal provisions that exist do not appreciate the fact that young adolescents engage in such relationships, and in the eyes of the law, the boy — under the age of 18 years — is culpable of defilement.
But this debate is incomplete and single facet as it primarily focuses on experimental sexual activity among adolescents without regard to their holistic reproductive healthcare needs and the implications of the age of consent. As it is, anyone below the age of 18 years is regarded as a child; simply put, an adolescent cannot access any healthcare services without the permission of a guardian.
According to the Kenya Health Information management System (KHIS), girls aged 10-19 in Nairobi recorded 11,795 teenage pregnancies while Kakamega and Machakos recorded 6,686 and 3,966 cases respectively. A total of 151,433 pregnancies were recorded in all 47 counties in Kenya during that duration, January- May 2020.
Studies have shown that teenage mothers make up 14% of all births in Kenya, with 63% of them having unintended pregnancies; more than 54% of them have unmet contraceptive needs.
Lack of information, misinformation and myths are some of the reasons behind this pregnancy crisis. Young people are stigmatised when they try to get access to condoms or other forms of contraceptives. More often than not, healthcare workers treat them as minors with no rights to reproductive health, which creates more barriers: the effect of this is that they continue to engage in unsafe sex practices.
More than 500,000 girls accessed unsafe abortion services in 2012: many of them ended up with either fatal or life long complications, according to a study by APHRC and the Ministry of Health.
Obstetric hemorrhage is one of the documented causes of maternal mortality, if data is to be disaggregated. APHRC estimates that the cost of treating both direct and indirect complications as follows: cost of time is 5.5 hours for uncomplicated cases, 6.7 hours for moderate complications and up to 12.4 hours for severe complications with the cost varying from Ksh. 3,269 to Ksh. 9,133 for severe complications cost of death is not quantified.
Which is more cost effective, managing complications of unsafe abortion or removing barriers such as those that are legal age-related to ensure access to reproductive healthcare services?
As of 2015, more than 50% of new HIV infection rates were among young people aged 15-24 This was double the number that was recorded in 2013 and 33% of these new infections occurred among young girls. Among the confounding factors were misinformation, insufficient information, risky sexual behaviour and substance abuse.
Legally speaking, a minor aged 18 and below cannot access HIV testing and counseling services on their own without the presence of a guardian. Section 14 of the HIV Prevention and Control ACT of Kenya prohibits minors from being tested unless they have written consent from a parent or legal guardian.
If we are to be pragmatic in reducing new HIV infection rates, then we must be able to address the legal barriers that compromise access to healthcare for young people, including relooking -the age of consent.
Healthcare notwithstanding, reducing the age of consent does not necessarily translate to regression of progress Kenya has made on child protection mechanisms such as reducing cases of child marriage, Female Genital Mutilation (FGM) and child labour.
The call is therefore to tighten the protective mechanisms for minors; address the unjust criminalization of sexual activity among adolescents; desexualize sexual and reproductive healthcare services, facilitate access to comprehensive reproductive healthcare; employ close-in-gap categorization which protects young boys who engage in sexual activity with their peer adolescents and make statutory rape provisions airtight so that minors below the age of 18 are protected from predator adults while recognizing that section 8 (1) and 11(1) of the Sexual Offenses Act is a safety net for protecting minors and not one that criminalises adolescent young people engaged in romantic sexual activities.
Dr. Stellah Bosire is a medical doctor, human rights activist and student of Law
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