A man serving a 20-year sentence for defiling a 13-year-old girl in 2012 has been set free.
A judge in Malindi ruled that the girl behaved like an adult and enjoyed repeated sex with the 24-year-old man.
Martin Charo was convicted in 2012 by a Magistrates’ Court and appealed at the High Court.
On Thursday last week, Justice Said Chitembwe said under the Sexual Offences Act, Charo was not expected to confirm the child’s age from different people.
The judge concluded that the appellant ought to be freed because after several sexual episodes, “age became a non-issue and she seemed not to have been complaining”.
Justice Chitembwe ruled that conviction for the offence of defilement should not be limited to age and sexual penetration alone as these in themselves do not amount to conclusive proof of defilement.
The judge said before passing judgment in such trials, courts should consider the conduct of the complainant, as it plays a fundamental role in a defilement case.
Chitembwe also ruled that if age and penetration were made the key ingredients in the conviction, “then young girls would freely engage in sex and then opt to report to police whenever they disagree with their boyfriends.” He also said although it was tempting to conclude that the girl was defiled after hearing her testimony, an examination of her overall conduct in the matter raised doubts about her credibility.
The judge argued that enough evidence had been adduced to show that the girl behaved like an adult and willfully left her parents’ home and went to the appellant’s house, purposefully for sex.
He added that although it was morally repugnant for adults to have sex with children, Charo’s case ought not to have been concluded on the altar of morals.
“It is important to distinguish between law and morals,” he said adding, “Although the girl in this matter was 13 and 14 when she had sex with Charo, what happened to her cannot be classified as defilement because she freely went to Charo’s house for sex several times and appeared to enjoy this.”
He further ruled: “Children are not meant to enjoy sex. Whenever they do, then that becomes the behaviour of an adult. Although the public will frown upon an adult who engages in sex with such a child, we should not forget that circumstances have changed. Young children engage in sex at a very young age. This is not out of defilement.”
The acquittal has outraged the State and lawyers who have accused the judge of misdirecting himself.
The Director of Public Prosecutions said the State will appeal the ruling and a lawyer warned that the judgment would encourage sexual defilement of children under 18.
Charo who was arrested on January 4, 2012 was convicted by Senior Resident Magistrate LN Wasige in 2012 after being found guilty of having sex with a girl aged 13.
Didn’t complain
Justice Chitembwe ruled that although the Magistrates’ Court had determined that the girl was 14 years old during the proceedings, the trial court was wrong to convict Charo on the mere basis of age while disregarding the girl’s behaviour.
“It is clear to me that although the complainant was a young lady aged 14 years; she was behaving like a full grown up woman who was already engaging and enjoying sex with men. She seemed not to have complained about the incident,” said the judge.
He noted that the moment a girl begins to behave like a woman “the court ought to treat such a child as a grown up who knows what she was doing.”
And the judge also wrote that no evidence was adduced in court to demonstrate the girl was a pupil or that Charo took advantage of her.
According to the evidence, the judge said, the girl dodged her relatives and willfully went to stay with the appellant.
“I also believe her brothers knew the appellant was her boyfriend. Charo should, therefore, not be condemned for the voluntary acts of the complainant because she was enjoying the relationship,” he said.
Lawyer Jackline Kawere faulted the judgement saying Justice Chitembwe misdirected himself to reach findings not founded in law.
She said Chitembwe did not “address the grounds of appeal as cited by the accused” and warned that if the judgment is left to stand, it would encourage sexual defilement of children.
She said the judge did not uphold the spirit and letter of the Children’s Act that demands protection of the best interests of children.
She said the judge ought to have upheld the sentence after establishing the victim was a minor, incapable of providing informed consent under Kenyan law.
“Having found the victim was a child, the judge ought to have upheld the sentence,” she said.
