High Court declares blanket criminalisation of consensual sex between minors unconstitutional
High Court declares blanket criminalisation of consensual sex between minors unconstitutional
The High Court has issued a landmark ruling declaring that the blanket criminalisation of consensual sex between minors is unconstitutional, in a decision expected to significantly impact the enforcement of the Sexual Offences Act.
In a judgment delivered in Constitutional Petition No. E490 of 2025, Justice Bahati Mwamuye held that applying Sections 8, 9, 11, and 43 of the Sexual Offences Act to adolescents engaging in consensual, non-coercive, and non-exploitative sexual relations violates the Constitution.
The judge ruled that children deserve protection and guidance rather than punishment in cases involving consensual adolescent relationships that do not involve coercion or exploitation.
Justice Mwamuye further directed the Office of the Director of Public Prosecutions (DPP) to revise prosecution guidelines to prevent consenting teenagers from being charged with defilement under the current law.
The court found that the existing provisions of the Sexual Offences Act fail to distinguish between predatory sexual offences and consensual relationships involving adolescents who are close in age.
Legal experts, among them Caroline Oduor, had earlier raised concerns on the law, arguing that the blanket criminalisation of all sexual activity involving persons under 18 years failed to meet constitutional standards on proportionality, dignity, and the best interests of the child.
The petitioners submitted that criminalising consensual adolescent relationships pushes teenagers away from reproductive health services, isolates them from support systems, and undermines efforts aimed at protecting their welfare.
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The ruling comes months after Parliament faced renewed pressure to review the Sexual Offences Act No. 3 of 2006 amid growing concerns over prison congestion and mandatory sentencing in defilement cases.
During inspection visits by the Constitutional Implementation Oversight Committee to correctional facilities in Kisumu County earlier this year, prison officials and legal experts raised concerns that mandatory sentences of between 15 and 20 years deny courts the flexibility to consider individual circumstances.
Stakeholders particularly pointed to so-called ‘Romeo and Juliet’ cases involving teenagers close in age, where issues such as mutual consent, age proximity, and lack of predatory intent are often overlooked during prosecution and sentencing.
Statistics presented to lawmakers showed that sexual offences account for more than 31 per cent of Kenya’s prison population, with defilement cases forming the majority.
Meanwhile, still in the corridors of justice, the High Court has issued a landmark ruling stating that Kenyan law does not expressly prohibit the alteration of sex or gender markers on official documents, a decision expected to shape future policy and constitutional interpretation on identity rights.
In a judgment delivered on Tuesday, Justice Mwamuye found that the refusal by state agencies to amend the documents of transgender activist Audrey Mbugua Ithibu violated constitutional rights to equality, dignity, privacy, freedom of expression, and fair administrative action.
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