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By Muwereza Nathan
Abstract
In this dissertation, I analyse defilement as a crime, sexuality and attitudes towards sex
among adolescents. I link these attitudes to the prevalence of defilement cases in Uganda
as a country. The analysis showed that youths have positive attitudes towards sex and are
emotionally weak when it came to sexual pleasure. Traditional beliefs and superstitious
approaches to sex contributed to unsafe sexual practices among adolescents.
I also show that defilement is a very broad offence as per its legal definition, and with
practical loopholes. It does not distinctively separate children from adolescents; neither
does it take into consideration the plight of status offenders (offenders by virtue of their
ages). It showed that much of the legislation is based on child sex abusers and use the
same basis to approach issues of consensual sex between young adults.
The theoretical frameworks within which sexual offences are explained are lacking in
many aspects of status offenders. It is only in the legal frameworks and in a bid to deter
child sexual abuse that this aspect can be justified. However, as was indicated, it has
complicated the smooth adolescent health and sexual development.
I try to show that most literature and discourses about defilement do not clearly spell out
its prevalence, especially in the Ugandan legal context. The discrepancies surrounding the
issue of status offenders has not been clearly spelt out in relevant literature, neither have
their threatening numbers been portrayed in the context of defilement. Many of the studies
and discourses just alluded that defilement in form of early marriages are rampant but
don't suggest legal proceedings.
I concluded that consensual sex between adolescents may not have been a crime and
section 129 of the penal code of Uganda needed revision or amendment. However, I do
not rubbish the usefulness of defilement as an offence in regard to child sexual abusers
and paedophiles. These need to be dealt with in the most stringent way possible; where
loopholes exist, the state structures need to address them to effectively and fruitfully
administer justice.
I explain some of the factors that make adolescents to engage in sex and that the
interconnectedness of such factors makes legislation and prevention of sexual offences as
well as the spread of HIV/AIDS and other Sexually Transmitted Diseases difficult. I
suggest that good, properly and comprehensively considered policy, criminal and legal
frameworks will be those that try to harmonise such factors.
1
CHAPTER ONE: BACKGROUND
1.1. Introduction
Many studies show that worldwide, adolescents are sexually active (Moore et al, 2006;
Remez, 2000; Bagley, 1997) either amongst themselves or with adults. This might be with
or without adolescents' consent. While there are generally similar approaches to the
criminalisation of sex between adults and children in many countries, there exist much
more nuanced methods of using criminal sanctions to regulate sexual behaviour among
adolescents in different countries. In addition, given the specific contexts within which
sexuality and sexual relationships develop, sexual offences present complex cases for both
courts of law and the entire criminal justice systems of many countries.
Although sexual offences are perhaps the most shameful and feared among humans, they
are on the increase. For instance, it was indicated that in the United Kingdom, sexual
offences had increased in subsequent years.1 Additionally, their typologies and prevalence
vary and are hard to quantify. As a result, studies that involve and relate to child sexuality
and offending have tended to focus on child sexual abuse. Moreover, according to Wazir
and van Oudenhoven, (1998), child sexual abuse itself is also complex in profiling. It is in
this same focus that theories, measures and/or legislation seem to be advanced, enacted
The above notwithstanding, sexual offences have generally attracted a lot of attention in
recent years. Engineered by scandals, media reports, pressure groups as well as some
empirical research, reactionary policies and legislations have been conceived and enacted
1 See for example Povey et al (2000:1) on crime statistics in England and Wales.
2
offending that have been taken for granted and seem to be misinterpreted, relate to sex
between adolescents themselves. Aspects such as consent and appropriate age for the same
worldwide. Much of the legislations and policies are generally being based on adult
yardsticks, and seem to treat adolescents as young versions of adults. While reactionary
policies and sanctions may be necessary in the short run, multifaceted and contextually
appropriate approaches are needed in the long run, lest there be creation than reduction of
crime. On this aspect, it has been noted that the adverse effects of misguided programming
in existing criminal justice institutions in the United States, particularly enforcement, the
courts, and corrections actually contribute to the crime problem (Silvester, 1987:121-122).
It is therefore important that programmes that address any social issue such as sexuality
It has become increasingly evident that adolescent sexuality is a complicated social aspect
not only in criminology, but also in health and other spheres of human life (Chalmers et al,
2006; Ingham and Aggleton, 2006). In the criminological sphere, when adolescent sex
offenders are viewed as not adults, they are generally over protected and absolved from
moral responsibility for their behaviours. When they are viewed as not children, there is a
tendency to deal more punitively with them than with adults who commit similar sexual
offences.2 In line with this, the type of sexual offence is an issue that needs clarity in
regard to adolescents. This is because some behaviours and actions may not be offences in
the real socially constructed world. 'Status offenders' do provide a good example in this
regard. These are defined as children and teens whose sexual behaviours are consensual
and with partners close to or in their age brackets; but such behaviours are unlawful only
because they (teens) or their partners or both of them are under the age of consent
2 See also Reiss, (1960) who in addition argued that the failure to accord adolescents a distinct
status position that is closely integrated with the larger structure for governing their behaviour has
important implications for defining and sanctioning their sexual conduct in our societies.
3
(Zimring, 2004:2). I personally and throughout this dissertation consider these as victims
of merely unjust legislations and criminal sanctions that may lack comprehensiveness, and
while there are notable differences regarding the meanings of different types of sexual
offences and how they are handled in different countries, states or cultures,3 common loci
should exist when considering the effects, policies or legal approaches that seek to address
them.
adolescents. The justification for using this specific term is explained in the next section. I
specifically address dilemmas that surround 'status offenders' and criminal law. I
regard to its meaning, prevalence, legal dilemmas and inherent failures. I also explore
other related and probable explanations for prevalence of sexual activity and defilement by
and/or among adolescents. I infer and argue that the criminalisation of consensual sex
between adolescents is not only hard in theoretical, practical and/or policing terms but
may also have negative implications for adolescent sexual health and development. I delve
more into the Ugandan situation and draw much of my focus thence. Here, despite its
definition. Some insights are also drawn from the United Kingdom and a few from the
3 See for example Wazir & van Oudenhoven, (1998:3) who indicated that lack of consensus in
defining sexual offences is caused in part by multicultural societies; and noted that perceptions of what
constitutes sexual abuse are culturally and socially determined, with the result that acts which are
considered offensive in one cultural context may be quite normal in another.
4
Defilement is a legal term used specially in Uganda and some other African and
developing countries to refer to a sexual crime in which the victim is a girl under a
specifically defined age (18 years for Uganda). It is derived from the word 'defile' that
compares with the word 'spoil'. Its meaning and intent then implies that the law needed to
guard against spoiling of girls' sexuality. It is stated in the Penal Code Act of the laws of
Uganda that any person who unlawfully has sexual intercourse with a girl under the age of
eighteen years commits an offence and is liable to suffer death.4 This is irrespective of the
age of the offender and the victim's consent to the sexual encounter. While I acknowledge
the sexual vulnerability of girls in society, I observe that young males in even healthy,
In the United Kingdom, there are crimes that compare with defilement such as child
sexual abuse. But these are more categorised in terms of age limits and differentials. The
equivalent of defilement in the Unites States of America is statutory rape. Again, there are
considerations of age limits (that are different in different states). The two offences (child
sexual abuse and statutory rape) above also cover male and female offenders in detail.
Evidently therefore, definitions and meanings of sexual offences are different and varied
in different countries. However, defilement (as seen in the above definition) does not cater
for sexual abuse of males of the same age as is the case in the United Kingdom and the
United States of America. It is plausible to observe that these definitional mishaps are in
part the cause of practical challenges in applying the legal sanctions on defilement, hence
In English law, there are several sexual offences and among them are those that relate to
4 See section 129 of the Penal Code Act - chapter XIV (in Chapter 120 of the laws of Uganda).
5
children.5 There are detailed sections in the Sexual Offences Act 2003 that provide a better
basis to apprehend offenders in regard to child sexual offences than those for defilement.
For example, sections 9 and 13 clearly define what it means to sexually offend and do not
in relation to consenting ages. However there are also no provisions for sex between
consenting children themselves and there is cause for alarm in this area in the United
Kingdom as well. Although some of the loopholes could be covered by the juvenile
arrangements, which are not well developed for Uganda, it is still a challenge since there
From the above comparative definitions of sexual offences, there are connotations to the
effect that they (especially for defilement in Uganda) implicate the male victim of any
sexual encounter. In this case it is envisaged that there must be a penetration of the penis
into the vagina. It is further presumed that a female cannot defile a male because she has
no penis to penetrate into any hole on a male. But sexuality entails broader meanings and
need not be restricted to only vaginal penetration. Costa and Wood, (2005:18) vividly
showed that sexuality encompasses the sexual knowledge, beliefs, attitudes, values and
behaviours of individuals, and is an integral part of the personality of every human being.
It develops through the interaction between the individual and social structures, influenced
by ethical, spiritual, cultural and moral factors. Its various dimensions involve the
anatomy, physiology and biochemistry of the sexual response system; identity, orientation,
roles and personality; and thoughts, emotions and relationships. It begins before birth and
lasts a lifetime, full development of which is essential for individual, interpersonal and
between the several institutions concerned, including the criminal justice system. The
5 See also the Sexual Offences Act 2003 Chapter 42 part I sections 5 to 29
6 See Costa and Wood, (2005) on sexuality and social Change: making the connection: Strategies
for action and investment.
6
United Kingdom’s Sexual Offences Act 2003 is more accommodative in this regard. It
recognises the fact that even using any part of the body in a 'sexual' manner constitutes a
sexual act. Hence, it does not limit sex to vaginal penetration only. It also acknowledges
Comparatively therefore, the law in Uganda is more flawed. While I appreciate the fact
that these are two different countries in different continents with different levels of
allowing loopholes in the law and jeopardising justice. Moreover, Uganda's legal
structures are duplicates of those of the United Kingdom due to its colonial background. It
would rather be good if differences arose where the social and cultural fabric don't allow
smooth duplication. But since sexuality has become increasingly complex worldwide,
Not to lose track, we need to precisely and comprehensively define an adolescent sex
rehabilitating the offender using the criminal justice system. In-as-much-as I agree that
such a definition may be hard to come by, one that covers most or all aspects of the
offender and victim is plausible. Mathews (1997:1) provides one and defines an
adolescent sex offender as “any male or female of a 'legally specified age bracket' 7 who
performs any sexual act with any person against the latter's will and consent”. In view of
this definition, defilement as a legal term has some loopholes regarding adolescent
sexuality. Firstly, it assumes non-consensual sex, yet many adolescents have consented to
having sex and many are happily married. Secondly, it assumes that a female cannot defile
7 It is also unfortunate that legally specified age brackets and their definitions also present
artificial barriers in many social contexts and complicate the sexuality of adolescents themselves and
may be detrimental (see Levine, 2003).
7
(spoil) a male in a sexual manner yet older females may indeed spoil (sexually victimize)
younger males (Bolton et al, 1989). Thirdly, the socio-economic and cultural contexts
within which adolescents are raised have an impact on their sexual will to engage in
sexual intercourse. These are not fully considered and inculcated in the legal definition of
defilement. Further, while the theoretical frameworks within which sexual offences are
analysed have a lot to offer in explaining defilement, they leave out issues of adolescence
consensual sex and the plight of status offenders, especially males. The extent to which
the criminality of 'status offenders' can be located in existing theories of sexual offending
in the Ugandan context may be minimal. An exploration of some of the theories in the
A number of theories have been advanced in attempting to explain sexual offending and
its etiology. These include; the integrated theory of the etiology of sexual offending
(Marshall & Barbaree, 1990), the precondition theory of child sexual abuse (Finkelhor,
1984), the Child molesters' implicit theories (Ward & Keenan, 1999) among others. It may
be observed that these theories have not covered the aspect of status offenders as portrayed
in the sexual offence of defilement. They are only able to explain cases where the
offenders are adults such as child molesters;8 and/or where the sexual act is non-
consensual, but not consensual sex between adolescents themselves. Below is a brief
review of two of the theories to elucidate the fact that even theorising has covered but
This is one of the theories advanced in recent years to explain the etiology of sexual
offences. It was advanced by Marshall and Barbaree, (1990). According to this theory,
8 See for example Ward & Keenan (1999), who argue that maladaptive implicit theories
concerning the nature of victims and the world do generate cognitive distortions in child molesters to
view children as sexual objects.
8
acquisition of attitudes and behaviours during childhood, as well as biological hormonal
dispositions set the stage for the developing male to respond to sudden onset of strong
In this theory, there is an implicit suggestion that it is only the males who sexually offend
and/or abuse. This is because males are the ones on whom all the explanations of what
causes sexual offending behaviour are based. This may not necessarily be the case for
adolescents. Females have been found to sexually abuse males and this places male
not been accounted for by this theory, yet it is, as already noted, a criminal offence.
Finally, this theory stresses the issue of aggression and underscores aggressive sexual
offences. Although many sexual offences have the aggressive component, those that don't
involve aggression also needed causal explanations. For example, many defilement cases
Similarly, other sexual offences such as voyeurism and those related to pornography don't
The preconditions theory was developed by Finkelhor (1984); and was an effort to bridge
the gap between psychological and sociological interpretations of sexual abuse. The theory
tries to link causal factors for sexual abuse by a hierarchical model. This model includes
9 ''Male children are at clear risk from sexual victimisation, misuse and abuse of developing
sexuality. Gender differences often assumed to protect against this risk do not... We tend to be more
protective of female than male children''(Bolton et al, 1989:39)
9
individual factors related to the victim, the abuser, the family and the socio-cultural
factors.
The theory generally states that in order for a person to sexually offend, there are certain
preconditions that must be met first. These analytically include the fact that: i) the
connection in communication or a level of understanding with the victim; ii) the offender
must be sexually aroused to the victim (the child); iii) the offender must have poor
interpersonal and/or social skills and cannot make good relationships with genuine sex
mates and lovers; and iv) the offender should fail to inhibit sexual and other socially
The theory stresses the child as the victim and ignores the fact that the child may also be
the offender especially in the case of adolescent sexual encounters. Furthermore, there are
sexual offenders who may not necessarily have this supposedly communicative
connection to the victim. Also, other adults have good sexual relationships with genuine
It is observable that there can be criticisms for each of the theories advanced to explain the
offenders cannot be well situated in most if not all these theories. Thus, the law may need
While these theories have flaws regarding the explanations of the criminalization of
consensual sex between adolescents, they have some strong arguments that generally
address sexuality and the cause of sexual offences among adults. For instance, Marshall
10
and Barbaree's (1990) integrated theory of the etiology of sexual offending acknowledges
also appreciates the value of developing interpersonal and/or social skills to help make
good relationships with genuine sex mates and lovers. While I also agree that proper
interplay of contexts within which child sexuality develops is essential, I disagree that
create a healthy context for their sexual development and subsequent reduction of sexual
offenses. Levine (2003) plausibly argued that sex between adolescents is just part of
normal human development and barriers in terms of laws will impinge the process and
interrupt its smooth transitory nature. This is not to suggest that children should be left to
play sex wherever and whenever they want it, but that criminal sanctions are an extreme,
the justification of which is practically and theoretically hard. Therefore, the provision of
proper contexts must be understood and done in light of what works well for developing
Contexts are an important aspect in the development of any social behavior. Chalmers et
al (2006), while explaining their perspectives on how to promote young people's sexual
and reproductive health identified five contexts within which adolescent sexuality
programmatic contexts. These authors ably and plausibly underscored the importance of
understanding the interplay between these contexts while studying and tackling issues of
adolescent sexuality.10 Although their work was not in the criminal context, it has
important elements that point to the criminalization of sex among adolescents. For
instance the political and programmatic contexts in which the legal and/or penal codes are
10. ''...whilst acknowledging that young people have varying desires, attitudes, knowledge, skills and
abilities, a dynamic contextual analysis explicitly recognises that there are, in all societies, forces
that determine whether, how, when, with whom and where young people engage in sexual
activity'' (Chalmers et al, 2006:8).
11
developed need to be approached in light of other contexts such as communities, socio-
development. Therefore, theorising and legislating about sexual offences among children,
regardless of their nomenclatures and country or location, should be done with a proper
particular shall remain problematic. Similarly, prevention of such offences shall continue
It is important to note here that there has never been an empirical study in Uganda to
entirely address defilement and its prevalence. However, from some studies that have been
carried out for different purposes and objectives, I deduce that defilement is prevalent if
taken by its legal definition. For instance, a survey by Neema et al, (2006) revealed that
sexual activity is fairly common and often sporadic among young people in Uganda.
About thirty percent of female and male adolescents (below 18 years) have had sexual
experienced as females, however as they get older this gap between the sexes closes. One
in five young people reported having had sexual intercourse in the last 12 months. A
higher proportion of female 15–18-year-olds had sex in the three months prior to the
survey, compared with their male counterparts. Nine percent of the girls said that some of
the men they had sex with were 10 years and above older than themselves. A good
12
majority have boyfriends with whom they have sex in their age bracket.
In the same vein, a study of the experiences of pregnant adolescents in Wakiso, one of the
districts in Uganda by Atuyambe et al, (2005) indicates that defilement is not only
prevalent but also goes on unabated. This study qualitatively sought opinions of pregnant
adolescents, adolescent mothers (mostly below 18 years) as well as their care givers and
opinion leaders of a relatively rural setting. The aim was to explore problems that pregnant
criminological perspective, and in the face of the current law on defilement in Uganda,
those who impregnated the girls covered by this study are criminal offenders regardless of
whether there was consent. While the study provides much evidence, it is silent about the
criminal aspects; neither does it portray such sexual activity as criminal. I draw your
''We who have young men as husbands find it a problem. When you get pregnant he is
not merciful, he cannot treat you like a normal person, even when you tell him that
you are sick, he says ‘I left a person without any illness, how can this happen? Serve
me food’. In other words he wants you to do everything for him: he has no
compassion over your health condition. If he finds that you have not done any work,
he abuses you and just quarrels…He keeps the wife there because she was chased
away from home, she fears to go back to the parents and tell them about her problem.
They will ask her “Are we the ones who sent you there?'' (ibid: 307).
It can be seen from the above quotation that in addition to the implied cases of
defilement, there is domestic violence and abuse. The law provides, as already
indicated that a girl of under 18 years is unfit to consent to marriage and sex. The
one who marries her and/or has sex with her (hence pregnancy) breaks the law and is
liable for criminal prosecution, regardless of his age. Why haven't such husbands
been prosecuted? Were the laws put in place for formality? It all turns to questioning
13
the basis and context within which such laws are developed and implemented. If
they were reactionary, revisions and amendments are needed to address such evident
Uganda may not be so unique in regard to young people's sexuality. Studies show that
more than one-fourth of the adolescents under 18 years in other Sub-Saharan countries
have already given birth (Population Reference Bureau, 2006). More than fifty percent of
women in the age bracket of 20-24 who are now married did so before their seventeenth
birthday (UN, 1989). In the United Kingdom, a study about planned teenage pregnancy
by Cater and Coleman in 2006 provides evidence that adolescents are sexually involved.
'' ‘I was a bit – you know – I was – I’d been with his dad for about three years, I
think, before I got pregnant. I was with him for ages, so I was quite young. I
never used precautions, so I s’pose you could say he was planned and not
planned really.’ (Female, aged16)” (page19).
She was with him for ages, quite young and never used precautions during sexual
intercourse; presumably on contraception. The difference here is that at least there is some
level of responsibility by the offenders. This could be as a result of proper and better
upbringing that makes adolescents not to fear sex but act responsibly in this regard. It has
been observed that teenage sexual activity does not necessarily lead to sexually
irresponsible behaviour.11 In this respect, it is also observed that some feel at least guilty
of their irresponsible sexual and other actions; thereby not perceiving injustice when
apprehended. One was quoted to have accepted such responsibility when he said:
11 See also Wilder and Watt (2002:510) who investigated the link between parental behaviour and
adolescent sexual activity and behaviour.
14
''‘I’ve always done what I wanted really. It’s my fault I ended up in trouble, and
in there. And it’s my fault I’ve got a kid now. I’ve always done stuff I’m not
supposed to – it’s just me. If I see it and I want it, I just decide I’m gonna have it,
and that’s like – that’s like the story of my life– and I don’t know why. [Laughs] I
don’t think about what could happen.’ (Male, aged 17)'' (page 49).
Another basic difference is that whereas sex between adolescents is a capital offence for
the male in Uganda, it is not a capital offence in the United Kingdom, consent
notwithstanding. Of course, each country may set up laws, codes and policies to direct
actions but grave loopholes and mere extensions of the same to apply to groups that are
seemingly different and vulnerable inherently undermine the legal and criminal justice
systems.
In the Ugandan context, the prevalence of those committing the offence (having sexual
intercourse with girls below 18 years) does not reflect the severity of the said offence. It
may agreeable that studies on the prevalence of any phenomenon inform and shape much
of the strategies that are developed to address it. For instance, when a disease breaks out in
any area and appears to be prevalent, strategies to combat it must be developed within that
same context. This should be the same with criminal acts and offences like defilement.
However, precise estimates of defilement are difficult to obtain especially in the context of
status offenders because they will not report it as an offence. Even in the case of child
abuse, it has been established that the percentages of sexual abuse disclosures by child
victims during their childhood are low; and that this is partly because children may not
easily reveal their sexual encounters even if they are non-consensual until such children
are old or when triggered in some way (Robins, 2000). If non-consensual sex cannot be
reported, how then can consensual sex be reported? This is why it can be seen that most of
others have concentrated on child sexual abuse only. Suggestions and criticisms about
15
adult offenders and the role of the criminal and legal justice systems have been made in
such literature; but the aspect of status offenders has been ignored. The rate of defilement
as a crime would be very high if the aspect of status offenders was considered in its
original legal definition and its practical implementation effected in Uganda. Even the
media, NGO and other agencies' reports don’t stress status offenders like they do to child
sexual abuse.
It is in this respect that I regurgitate the view that it might have not been necessary to
criminalise consensual sex between adolescents the way it is in Uganda. Otherwise, the
state and the criminal justice system should be seen to pry into adolescents' sexuality. Less
than this, sections in the penal code are indeed rendered unnecessary. Yet prying on
behaviour. It is a form of injustice and makes sex a feared act. It may instead create a
context in which young people may develop poor interpersonal and social skills and
cannot make good relationships with genuine sex mates and lovers (Finkelhor, 1984). In
essence sex offenders might are bred than reduced in the long-run.
In light of the criminalised nature of what many don't report as offences, the defilement
argued here that legal approach to defilement was not well founded since it cannot be
strictly followed or justified. Categorically, defilement rates in Uganda are higher than
documented and/or reported, if taken by its legal definition. That is, consensual adolescent
sexual encounters are very evident and many do not consider them as sexual offences. The
what was intended to protect youths from adult sexual exploitation. The youths may have
become victims of this very protection; with detrimental effects to them (Levine, 2003)
16
and the legal and justice system itself. Conversely it is probable that the conception and
development of this legislation was reactionary and lacks the social and community
support. Many sexual encounters are consensual and their prosecution is complicated by
the fact that victims are willing to go prison with convicted offenders if it meant so. The
point here is that the criminalization of status offenders is unjustified in the definition of
defilement and other similar offences regardless of their nomenclature. As it stands now,
unreported status offender cases appear not to constitute part of the prevalence of this
evident and seem to be considered crimes only when maliciously reported or when they
The mouthpiece of several social ills in our communities has been the media. Defilement
and other sexual offences have their share in being portrayed in the media.
There are many genuine cases where adults are supposedly apprehended for defilement
and are reported in the media. For instance, Abdul Kyeyune, a teacher of Bright Academy
Primary School in Lukaya-Masaka was charged with defiling a 16-year-old girl who was
his pupil (New Vision, 30 March 2007). The police in Luwero had arrested Sembatya
Kityo, a traditional healer, over the defilement of a 17-year-old girl who had been taken to
his shrine for treatment by her parents (New Vision, 20 Feb. 2007). Nevertheless, other
genuine cases are not dealt with due to intricacies in the socio-economic conditions, the
law and general structural and technical constraints such as lack of personnel. For
instance, it was reported that defilement cases in Moyo district had increased (New
17
Vision, 25 March 2007). The criminals in most cases were not punished because of the
increased poverty among the victims’ parents. On 22nd of the same month, the woman MP
of Kalangala is reported to have told parliament that girls of as young as 10 years were
being sold to Kalangala for commercial sex. The list is indeed endless but the issue here is
that the media is doing much more in portraying the prevalence of defilement.
In spite of this effort of the media, it is also lacking on issues of status offenders. That is,
their criminalization is seemingly not sensed; and this supports the view that it might have
and social cultural factors. For example, it was reported that a defilement case was being
reported at the Hoima Police Station every 36 hours, making it the single most common
crime committed in the area. It was also noted that the majority of the cases of defilement
are not reported to the Police because parents and guardians unlawfully settle them in the
villages since girls are a source of wealth (New Vision, 23 March 2007). Many of the
defiled girls end up getting married and dowry paid to the parents. The criminal chiefs
have always blamed parents for failing to report the cases to Court, and hindering the
Police's efforts to curb the crime. The mothers of the defiled girls do encourage them to
abort especially if they have not liked the boy responsible for the pregnancy (the
offender). Such reports raise questions about the applicability of the said law. It is seen to
be contradicting what society views as valuable and beneficial. If people settle their
differences especially where the adolescents have consented to marry, this may not be
considered unlawful in the local people's perspective. This could partly explain
defilement's prevalence. It is not prudent to support the mentality of condoning adults who
seduce youths into marriage; but in cases where the youths themselves have consented to
having sex and decided to responsibly marry, especially as supported by their parents, the
law appears to be at a loss. It is also important to note that reporting of such cases is
18
mainly engineered by financial benefits, in which case the offending side may be
unwilling to pay the victim side (Magee, 2006). Where there is agreement, such cases will
In the United Kingdom, the media also reports on sexual offences. For instance, the
Guardian (2005) once reported that a married primary schoolteacher was jailed for 15
months after admitting having sex with an underage teenage boy. This shows that the
media helps in indicating how adolescents are sexually involved in different ways and in
According to official Uganda Police statistics, crimes committed in Kampala have been
increasing. Between 2002 and 2003, defilement cases rose from 649 to 999.12 The Crime
Statistics Report 1997-2001 placed defilement in position six out of the 40 most common
offences. In the United Kingdom, Grubin (1998:3) notes that in terms of official statistics
from England and Wales, indecent assault of females under 16 is by far the most common
sexual offence involving children and that in 1995 this offence resulted in 2,116 cautions
or convictions, representing about fifty percent of all sexual offences recorded against
children. The next most common offences are unlawful sexual intercourse with a girl
under 16, indecent assault on a male under 16, gross indecency with a girl under 14,
unlawful sexual intercourse with a girl under 13, rape of a girl under 16, and gross
indecency with a boy under 14. The numbers of cautions or convictions for each of these
offences are all listed in tables. Over all, the seven main offences referred to in the records
were responsible for 3,648 (92%) of the 3,957 officially recorded cautions or convictions
by now, these give insights into how official statistics on sexual offences involving
children also implicitly omit status offenders. This further strengthens the argument that
It is vividly shown that sexual offences involving adolescents are common not only in
Uganda but also in United Kingdom. However, the issue of sex between adolescents
themselves remains complex and the difficulty of determining and proving its criminality
percent of all adolescents under 16 years in the United kingdom have kissed a member of
the opposite sex; nearly half, or three million youngsters, have engaged in heavy petting,
2.5 million (forty percent of under 16s) have had full sex, including seventy-five percent
of all 19 year-olds. Stammers (2000:1520) notes that recent trends in adolescent sexual
health in the United Kingdom are cause for concern, and indicates that in England alone,
almost 90000 teenagers became pregnant in 1997. Slightly fewer than 7700 of these girls
were less than 16 years old. In the US some are opting for oral sex as a form of abstinence
activities of adolescents found out that, fifty-five percent of males aged 14-19 had
Forty-nine percent reported that they had received oral sex and thirty-nine reported that
they had given oral sex while eleven percent said that they had engaged in anal sex. More
than three-quarters of those who had had vaginal intercourse had experienced
masturbation or oral sex with a female. In Africa, a major regional study conducted by the
13 See also Remez (2000) on oral Sex among adolescents: Whether it is sex or it is abstinence!
20
African Population and Health Research Centre (APHRC) and the Guttmacher Institute
(US) in 2004 revealed that nearly fifty percent of young people (15-19 years) in Uganda,
forty percent in Burkina Faso, twenty-eight percent in Malawi, and twenty-two percent in
Ghana, are sexually active and have had sexual intercourse (Neema, et al, 2006).
Although the reliability of some of these study findings may need replication, they give
insights into the prevalence of sexual action among adolescents, criminalization of which
formulation in the wake of all these, I don’t agree that the criminalisation of consensual
adolescent sex can be the best solution. Insofar as it can be ascertained, defilement in
general and the plight of status offenders present some legal dilemmas to the criminal and
judicial systems, their prevalence not withstanding. In the next chapter, an exploration of
CHAPTER TWO
2.1. Introduction
It is worth noting that the stringent legal measures that are put in place to check some
social behaviour may fail due to the complexity of such behaviour itself. In Uganda,
before the amendment of the penal code in 1999, the penalty for defilement was life
imprisonment. After the amendment in this year, the penal code was amended several
21
times such as in 2003, which together with the other amendments from 1999 saw the
increase in the penalty from life imprisonment to the maximum penalty of death. In reality
however, these penalties are rare; not because people don't commit such offences but
because the cases are legally complicated. In this section, I consider and explore legal
dilemmas especially in regard to age of consent, age and sex discrimination and issues of
corroboration of evidence.
2.2. Consent
informed, mutual, honest, and verbal agreement. Consent is a process, which must be
asked for every step of the way; if you want to move to the next level of sexual intimacy,
just ask.14 Although these are the ideals, in many societies and cultures, they are never all
the case. It is arguable also that in real life, these issues are often more complicated. 15 In
Uganda, there is a popular saying: “a woman never says yes to the request for sex even
when she wants it. Her ‘no’ continues until she is entered, but responds with pleasure and
thanks” him for the work well done after intercourse. Women also have a popular
perception that a quick yes may indicate easy going (interpreted as promiscuous).
Similarly, the cultural upbringing nurtures women to be shy in sexual encounters. For
instance, Tamale, (2005) quoted one of the persons responsible for sexual grooming of
girls in one of the tribes (Ssenga) to have said that most of them are shy when it comes to
fore play (kissing and oral sex). Although Peterson and Muehlenhard, (2007) argued that
wanting may influence individuals’ decisions about whether to consent, and that wanting
and consenting need not correspond, these are indeed hard to tease out especially in
14 Yisrael, D.S. (2005) advices that never assume, ask before you proceed. A good lover is a good
listener. A bad listener is at best a bad lover and at worst a rapist.
15 See for instance Peterson and Muehlenhard, (2007:72), who, while observing that many people,
including the public and researchers, treat sex as either wanted or unwanted, with wanted sex being
consensual and unwanted sex being non-consensual also agrees that real life is complicated
22
circumstances of the above quoted saying and perception, a man who listens to the ‘no’ is
deemed weak in bed it is said. This could imply that there must be some element of force
in sexual relationships and the man must show that he is capable. I am not contextually
supporting rapists but just highlighting the intricacies in sexuality and offending in
contexts in which we can successfully criminalize and police sexual offences. It should be
realised to the contrary that adolescents may have the above ideals of consent fulfilled but
are considered offenders because of the legal definitions of ages of consent and this is of
more concern.
According to Tan, (1999), the age of consent refers to the age at which a person’s consent
to have sex is recognised as valid in the eyes of the law. It is observed that men and
women who engage in sexual activity with young men or women below this age are
therefore guilty of a criminal offence. This is true even if it was the young person who
wanted to have sex and ‘fully consented’ to it. The agreement of the person below the age
of consent is simply invalid in the eyes of the law. Yet in many countries this offence
(defilement in Uganda and ‘statutory rape’ in the USA) is one that is very severely
punished with sentences of up to death and/or life imprisonment. This is done in the name
of protection of the vulnerable group, the children. However, the criterion for vulnerability
a boy of 14 has sexual intercourse with a girl of 17 and we take the age as the measure,
then it will be the boy who is vulnerable. But in Uganda, this is not the case; the girl
remains vulnerable even when she entices the boy into sex. As much as I agree with
arguments from the feminist perspective; that women are particularly vulnerable, I do not
rule out the psychosocial and emotional component of sexuality from them. They will
want to have sex since it is more of a human instinct especially when in love. We should
23
humans.16 In addition, the criterion for defilement in Uganda seems to have over stressed
the vulnerability of adolescents at the expense of their freedom to sexually relate and
nurture their loving relationships. In this regard, ages of consent are portrayed as artificial
limits on the rights of maturing adolescents to individually choose and nurture their love
partnerships.
criminalised and punished severely, consensual, well nurtured and loving sexual
relationships between maturing adolescents may not need to be hampered in the name of
protection. It's been argued that society may not necessarily reap better results by
protecting adolescents in this way.17 Others may want to argue that the criminalisation of
sex between adolescents may inhibit antisocial sexual behaviour, but consensual sex
between young people is not necessarily antisocial behaviour (Wilder and Watt, 2002).
Maturing adolescents need to relate responsibly as their ages advance to allow them
partner up smoothly. Therefore, unless these ages of consent are well defined as well as
Poignantly, the Uganda Penal Code sets the age of consent at 18 years but does not
discriminate between ages liable for criminal prosecution for the offenders. The Sexual
Offences Act 2003 of the United Kingdom is considerate in regard to age of consent (16
years). Moreover, both males and females are well covered therein. Even then, laws that
polemical and intricate to stakeholders; especially in view of sexes and ages of consent.
16 See for example Lastrucci (1942:215) once noted that the so-called nature-nurture problem
undoubtedly is far from being settled, and perhaps will never be entirely a closed issue.
17 See also Levine (2003) who argues that trying to protect young people from sex can actually
exacerbate or even create the much-feared sexual danger.
24
2.3. Age and sex discrimination
The Penal Code section states broadly that any person who unlawfully has sexual
intercourse with a girl under the age of eighteen years commits an offence and is liable to
suffer death. The phrase 'any person' alone implies that even boys young than the victim
girl are liable to suffer death. This is of course regardless of whether the girl consented
and liked the sexual encounter. In this same context, Zimring (2004) questioned and
wondered whether a child or young adolescent who commits a single act of sexual
aggression against another child should be treated the same way as a 30-year-old man who
assaults an 8-year-old girl. He calls this a travesty of justice - a policy that ignores the
developmental stage of young sex offenders in determining their legal fate. Although he
did not argue this in light of status offenders, the question is important because it brings to
light some of the legal injustices that I am trying to highlight in this dissertation.
In the same vein, the precocity of girls' to boys' growth and development need not be
downplayed. Parent et al, (2003:668) observed that during the past decade, possible
advancement in timing of puberty has been reported. Early pubertal development and an
increased incidence of sexual precocity have been noticed in children, primarily girls,
migrating for foreign adoption in several Western European countries. These observations
raise the issues of differences and secular trends in timing of puberty in relation to ethnic,
It is recognised that in 1990, the law defined the age of the minor victim of defilement as
13 in Uganda. In 1993, the National Resistance council amended the same law to cover all
defilement remained a serious problem in subsequent years (UHRC, 1997). Yet, only a
25
small fraction of the cases are reported as noted in an earlier section. It has also been
observed that when accusations are launched in courts, convictions are not common due to
the complexity of the very cases themselves. While defilement carries a maximum penalty
of death sentence, such a punishment has never been meted out to any that offenders. This
has been largely due to this crime's multifaceted contextual stance which actually
penetration, witnessing by minors (the defiled) and corroborating such evidence to prove
It has appeared in some cases that absence of medical evidence on penetration is not
HUSSEIN vs Uganda SCCA 35/1995, it was held that though desirable, it’s not a hard and
first rule that the victim's evidence and the medical evidence must always be adduced in
every case of defilement to prove sexual intercourse or penetration. Whatever evidence the
prosecution may wish to adduce to prove its case, such evidence must be such that it's
sufficient to prove the case beyond reasonable doubt. Further, it has appeared that absence
of the victim's evidence is not necessarily fatal to the prosecution case in sexual offences.
defilement case, an accused can be convicted of the crime on the basis of the testimony by
the witnesses other than the victim for example medical evidence and eye witnesses.
However, it is important to note also that in sexual offences, where the victim is a child of
tender years, evidential rules make the prosecution case doubly difficult. There is need to
corroborate the evidence of a child of tender years when the evidence is given on oath. In
UGANDA vs BATURINE RICHARD HCC 589/1996, it was held that the evidence of a
child of tender age requires corroboration and where a child of tender age is the
26
complainant in a sexual offence, her evidence doubly requires corroboration. Where the
accused denies the charge, the prosecution must discharge its legal duty of proving each
and every essential ingredient of defilement against the accused. In KOLIL vs R [1959]
EA 92, a child of tender years was held to be a child under the apparent age of 14.
Corroboration in law means independent evidence which supports the testimony of the
complainant. It is confirmation from some other source that the complainant is telling the
truth in some part of her story and goes to show that the accused committed the offence. In
independent evidence which connects the accused with the crime confirming not only the
evidence that the crime has been committed but also that the accused has committed it.
corroborated with either direct or indirect circumstantial evidence. Considering all these,
prosecuting status offenders becomes additionally hard. Lovers will do anything to make
prosecution proceedings fail. Will girls be forced to take medical examinations? How
about her rights? All these issues complicate matters for judges in courts. Moreover, every
judge must warn himself and the assessors against the danger of convicting an accused
UGANDA, criminal appeal 41/1995, the Supreme Court held that it is settled in law that
law, in practice it is always looked for and it is the established practice to warn the
MANNING, when he guided that the judge has to use clear and simple language that will
without any doubt convey to the jury that in cases of sexual offences, it is really dangerous
27
to convict on the evidence of the woman or girl alone. This is dangerous because human
experience has shown that in these cases, girls or women do sometimes tell an entirely
false story. It’s very easy to fabricate but extremely difficult to refute.18 Note that the
rationale for corroboration is that given the nature of the offence, the allegations may be
difficult to verify. Yet this is in cases where there was no consent. In cases where (for
example adolescents) consent to have sex, it is entirely difficult for such a legal approach
to work, because, the girl will just complicate everything by lying that she has never had
sex with the boy. Conversely, I witnessed a case where a girl, after being caught with her
boyfriend (while having sex) by police, helped by her parents insisted that she will go to
prison with him because they were in love. In this context, the legal approach in Uganda is
indeed problematic.
The United Kingdom's equivalent of defilement law in which the victim and offender are
adolescents is in section 13 of Part I of the Sexual Offences act 2003. While there are
explicit descriptions of what sexual acts should happen for the offender to be convicted,
defining a sexual act is quite complex. The Act does not include a list of actions which are
considered sexual. Although ways of determining them are set out, they all are at the
discretion of the jury.19 In regard to consenting adolescents, the jury may not ascertain
such acts with ease. Even reaching court alone may be problematic because there is no
From adolescent consensual sex point of view and the cases seen above, it is plausible to
observe that the legal dilemmas are in part, a result of the juxtaposition of the law with a
behaviour that is seemingly normal, healthy and liked by involved parties. Ng and Kamal,
18 See for example, Henry, R. vs. Manning [1969] 53 Cr. App. R 150 at 153
19 There are basically two categories of acts which are “sexual” for the purposes of this law. The
magistrate or jury have to decide whether a reasonable person would consider either that the particular
act is, by its nature, sexual; or whether it could be sexual, AND either because of the particular
circumstances and / or the offender’s intention, it is sexual (Rights of Women, 2006)
28
(2006:484) noted that female participants in their study described sex as “being beautiful”,
something “to be fulfilled, like hunger or thirst”, as “an act of love”, “a way for you and
your lover to get closer”, and “makes the relationship better”. Consensual healthy sex is
therefore understood as a behavioural act that has no harm to third parties or society as a
whole. However, fear of the actions of sexual abusers and paedophiles on young people
may impel governments to enact laws with a hope that they will help. Nevertheless, the
well as the factors contributing to the prevalence of adolescent sexual involvement may
offer insights into better strategies and programmes than criminalisation, whose practical
CHAPTER THREE
3.1. Introduction
Despite very stringent penalties over the years in Uganda, defilement has been, and is on
the increase. Almost every end of year, the Uganda Human Rights Commission (UHRC),
constitution of Uganda (Uganda Human Rights Commission Act, no.4 of 1997), releases
human rights reports on how human rights have been observed by persons, government
and other institutions. These have never missed issues on defilement each year. Moreover,
29
these reports seem not to consider consensual adolescent sex as an abuse and rightly so
because nobody is offended in that regard. Otherwise, the prevalence of defilement would
be deplorable because many adolescents are now married couples in Uganda. In the
United Kingdom, the National Attitudes and Sexual Survey (2000) revealed that thirty
percent of males and twenty-six percent of females had first sexual intercourse before age
sixteen. Indeed several studies (including; Todd et al, 1999; Kane and Wellings, 1999;
Stammers, 2001; Coleman, 2002 among others) indicate that teenagers are sexually
involved. The question of why adolescents engage in sex may be answered but with
difficulty, neither can it be provided with a universal answer. Conversely, almost all social
phenomena and their etiology are complex but those relating to this offence; and in regard
engaging in sexual activities and the circumstances under which they do so vary from
and social factors exerts enormous pressure on adolescents to start having sex early, he
does not draw implications for the criminalisation of such sexuality. In this chapter, I
explore some causes of adolescent sexual involvement and draw implications for
defilement offence.
In Uganda, there are many ethnic groups and tribes, holding different permeating cultural
beliefs and ceremonies that have implications for adolescent sexuality and defilement.
What young people go through in each of the tribes may provide some explanations for
early or late involvement in sex. Some of them are so complex and socially ingrained that
the law cannot easily and comprehensively cover them. Yet in the era of technology,
formal education and globalization, people of different tribes continuously interact and so
are their children. Cultural practices are thus permeating and being copied in several ways.
30
3.2.1. Clitoral elongation and womanhood
The Baganda, the biggest tribe in Uganda has a belief and a practice of elongation of the
clitoris (clitoral pulling), locally termed as the visitation of the bush because it was
eventually motherhood but it is achieved by pulling the labia and rubbing various herbs
and wild fruits into them (Neema, 1994). For this tribe, it is a precondition for marriage
and is carried out before the onset of menstruation. If in any case it is known that a
prospective bride has not pulled, it has to be done first lest her aunts (fathers' sisters),
20
whose duty is to have it done get ashamed and despised. Through the acculturation21
process or assimilation (Castles, 2003), many girls of other tribes have been influenced
into this practice especially in boarding schools. However, the sensations that are caused
by this process ignite or stimulate sexual feelings and develop sexual curiosity. These,
coupled with sexual energies that accompany adolescence and pubescence, may insinuate
adolescents into early sexual involvement. According to Tamale (2005), the practice of
elongating the labia appeared to be serving important functions and among them was that
the extended labia enhance the erotic experience of both the male and the female. She
observed that when touched and manipulated during foreplay or mutual masturbation, they
may be the source of immense pleasure to the couple. Several men interviewed said that
they enjoyed looking at and fondling the stretched labia of a woman and women enjoyed
the sensation. In this context, I do observe that the touching and rubbing of the herbs on
the clitoris of a young girl may sexually arouse her. It makes her to imagine the good
feelings and pleasure she would derive if she was actually with a male she loves. It may
20 . Arrangements will be hurriedly made for effecting the elongation if it is discovered that a prospective
bride has not been prepared in this way (Adeokun et al, 1995:19). Note also that a [Muganda] woman
who did not elongate the labia minora is traditionally despised and regarded as having a “pit”
(kiwowongole, kifufunkuli, funkuli muwompogoma). If a bride was found not to have elongated her labia
minora, she would be returned to her parents with disgrace (Sengendo and Sekatawa, 1999).
21 . I define acculturation as the process of changing one's culturally accepted act/behaviour due to
continuous contact with another person(s) from whom the act is copied, although Castles, (2003:23) calls
it assimilation theory
31
then follow that given any opportunity of intimacy with a boy; sex may be the eventual
result. Yet, it will be a likeable experience and consent is implied in this case. The
criminalisation of such pleasurable moments especially if attained with fellow age mates
in responsible relationships and encounters may be unjustified, if not very difficult for the
Among the Bagisu, the circumcision of adolescent boys and the ceremonies that are
performed to initiate them into manhood also provide avenues for early sexual
involvement. Although not in the criminal perspective, Heald, (1982) gives a clear picture
of important aspects and features of the circumcision ritual and its ceremonies. The
circumcision ritual is divided into some kind of phases. The first phase is when boys try to
practice and gather the strength to face the knife. They dance in small groups. The second
is when they ritually get committed by threshing the millet that will be used to brew the
local beer to be served on the operation day. The third and most vigorously engaging is
when they brew the beer. After threshing the millet, relatively bigger groups of relatives
and non relatives, usually youths (boys and girls) dance with the candidates and visit
distant relatives, covering sometimes over 50 miles on foot. When the beer is brewed and
during the three days, large crowds of people dance and sleep at candidates parents'
homes. It is important to note that it is during these dances that the opportunity to leave
the protective hands of the parents and/or guardians over the adolescents arises. It is also
believed that during this time, many are incited into sexual encounters.22 The dance, as
witnessed by myself (as a member of the same tribe) is such that boys may dance while
touching girls' buttocks in sexually arousing ways. The other important and key feature is
the fact that this ritual confers immediate adult status on the initiated youths. They become
22 See for example Kataami and Akola, (2002), noting that during circumcision period (only even
years) the major activity is dancing to traditional music and drinking alcohol, which incites the people to
sex.
32
adults, independent members of society and men (La Fontaine, 1967: 253), who are
expected to have their own houses/huts and marry. Given the fact that, boys as young as
14 years get circumcised, this status would mean that they will defile. In addition, one of
the ritualistic requirements is that the healed wound must be sexually tested on a woman
who should never be met sexually again. It all points to the fact that these adolescents are
meant to have sexual intercourse before marriage and/or while young. Criminalising such
sexuality becomes very complicated and difficult. It is not surprising that many youths are
married in Uganda and the legal system has done nothing about it.
In the United Kingdom, ritualistic acts may not exist in such forms. Although there existed
interaction in relation to sex education (Walker and Milton, 2006), the current open social
lifestyles and technology seemed could help. However, technology is accompanied by side
effects in form of indiscriminate media information, pornography and internet sexual acts.
These seem to increase than reduce adolescent sexual activity. They also seem to
3.3.1 Media
The media have a powerful influence on human actions and have arguably had its share on
human sexuality. Newspapers for instance have had a lot to offer for general public
consumption, much of which is not limited to only adults. In Uganda there is a paper
called Red pepper and its depiction of sex is so revealing that any curious adolescent
would imagine what it can be if tried. In the pictorial section of this paper, people are
pictured having sexual intercourse or at least depicted to be doing so. Such pictures have
different messages to different people, but most words that follow them insinuate sex and
33
are pornographic.23 They can arouse sexual feelings in any sexually active human being.
Similarly, there are several TV and radio programmes that are actually sexually arousing,
yet the audience is not always discriminated since doing so is hard in reality. Longo,
(2004:58) noted that many young people explore varied information sources to address
curiosity about human sexuality, curiosity about pornography, curiosity about sexual
lifestyles, and so forth. Such activity does not always lead sexual behaviour problems but
may arouse them to high heights of eroticism. In this same context, Stammers (1998)
observed that never before have adolescents been exposed to such relentless media
pressure to have sex as early as possible. Cinema, television, pop music, the internet, CD-
ROMS, teen novels and magazines all combine to project sex as a status symbol and
primary reason for living. Worsened by the fact that Uganda has no legal sanctions on
consensual sex is difficult and seems not to be a solution. Note also that although some of
the aspects cited above may be illegal in the United Kingdom and elsewhere; especially
when involving young people, it is really hard to police a liberally volatile adolescent in
the open modern environment and in the era of the internet and general computer
technology. There is currently much concern in the developed countries over internet
yet comprehensive strategies to discriminate what can be accessed by adolescents are also
complicated.
and has gone beyond just writing (graphein) about prostitutes (porne) to more constructs
in today's sexuality. According to Flowers, (2001:114), it has widened to include the many
23 Pornography is ''any sexually explicit and/or titillating, arousing written, photographic, pictorial
(including moving pictures) or live depiction of women or children for commercial exploitation ... or acts
to the population-at-large that have an effects on certain elements of society (Flowers, 1987:48)
34
ways in which sexually explicit material can be provided and disseminated such as
pornographic literature, movies, videos, live shows, photographs, and computer related
pornography. But to keep adolescents out of all the above is not any easy task even at face
value. A literate adolescent out of curiosity can have access to illegal adult webs in the
absence of a parent or care taker. Imagine the amazement and further curiosity such webs
can breed in the mind of an adolescent. Yet, in the current era of computers and internet
technology, their knowledge is almost a must for finding the best fit in the ever expanding
but yet narrowing globe. Policing adolescents on what to search for on the internet webs
'deprave and corrupt'. So pornography that is not deemed to be 'obscene' is legal in the UK
pornography in your possession, but it is an offence to distribute or publish porn that may
and can be traced in case it is distributed. But Dixon, (2001:2) notes that issues of
traceability and anonymity are extremely complex, since tools which can be used in
identifying perpetrators can be used by adults with a sexual interest to identify potential
victims. Also, issues of making, possession and storage in the computer era can be
does not include unintentional copying and that the offence of possession under s. 160 is
not committed unless the defendant knows he has photographs in his possession.24
24 See also case No: CO/3417/99 CO/3002/99 in the High Court of Justice. Royal Courts of Justice
strand, london, wc2a 2ll wednesday 8 march 2000
35
Similarly, children themselves may be perpetrators, their curiosity notwithstanding.
Moreover, such exposure pressurise them to have sex even among themselves (Stammers,
The European Committee on Crime problems (1993) indicated that pornographic material
involving children is often used to induce children to consent to sexual relations with
adults, as was apparent from a large number of cases of sexual abuse dealt with by the
courts. However, the committee needed also to recognise the fact that children are
themselves involved and measures to curtail these were also necessary. Also, in the event
of children watching such adult pornography, something needs to be done in that direction
to save the situation because they will also be induced into consensual sexual relationships
even among themselves. The silence of the committee on issues of sex between
good as feeding the adolescents on the same food which you don't want them to produce
whole be necessitated? These are really dilemmas in criminal justice. While this
committee recognises the fact that designing a coherent crime policy in this area requires
drawing lines between children and young adults being used for artistic or legitimate
commercial purposes and those used in an erotic context which does not necessarily imply
production of pornography, it does not show how such lines can be drawn. Such lines may
not be easy to draw since sex is a mind set. What constitutes art in some contexts and to
some people may be erotic to others. The picturing described earlier on can arouse sexual
feelings even when the intention was not to do so and was commercially artistic in its
originality. Remember that we are talking about what makes young people want to engage
in sex. Therefore, teasing out good pornography and bad pornography may not be easy for
36
3.4. Attitudes and emotions
What we like or dislike makes us to do or not do it respectively. The impetus for engaging
in sexual activity may be derived from such likes and dislikes. However, there is much
more than just liking or disliking. In this case, we need to consider the emotional and
pleasurable components of the sexual act. Ng and Kamal, (2006) in the study about
adolescent sexuality and HIV risk, found out that reasons for adolescent engagement in
sexual intercourse included sexual pleasure and expressing love among others. Although
the reasons of engaging in sex and their attitudes towards sex changed with time, as they
became more experienced, most did not regret having sex and losing their virginity. For
''Jeeze, first time, it wasn't enjoyable. I didn’t bleed and it didn’t really hurt. I
suppose that time yeah it was a way to show you know? Love. Like I love you
and you love me that kind of things and bla...bla...bla... so let’s do it kind of
thing. That’s about it. Then after that it becomes less and less important. You
know? You don’t take it as like make love kind of thing, it is just like having sex,
intercourse. So after that it is just like that and you want to try new things, you
want to be pleased even more.” (Female 5) (Page 484)
Many other quotations from the field pointed to the effect of emotions. 25 In addition,
feelings are dynamic and can change before, during and after any sexual encounter and
differences do exist in regard to males and females.26 But they seem to naturally occur in
humans and compel them to engage in sex even when the attitude is to the contrary.
Meier, (2003) found out that there are substantial attitudinal effects on first sex for both
25 “Also, because if you pleasure your partner through sex right, then both of you feel better. It is
like if you are sorry but you don’t like to say sorry right, then you can just show it by sexual act.”
(Female 6)“For the fun of it, and basically... another vital factor, I would say.... to fulfil my manly
desire.” (Male B) “I mean the reason why I have sex is because it is the emotional feeling. It is the
emotional feeling and the interest, and somehow you know it’s OK.”(Male D) (Ng and Kamal,
2006:485)
26 See also Haseltonu and Buss (2001) who after considering reports of presex and postsex
feelings, found that men with high numbers of sex partners, but not men with low numbers of partners,
experienced a decrease in their partner's physical and sexual attractiveness following first-time sexual
intercourse. In contrast, women, more than men, experienced increased feelings of love and commitment
following first-time sex.
37
males and females. She observed that the attitudinal effects on first sex are stronger with
regard to relational attitudes than personal attitudes and that there is substantial attitude
adaptation after first sex, with the strongest adaptation happening with regard to relational
attitudes for females. She argued that when deciding to have sex, females consider the
costs and benefits to those with whom they are close (e.g., their romantic partner or their
parents) and that having sex makes attitudes about sex more permissive. It may be
agreeable that in some cases, guilty feelings may follow a consensual sexual encounter but
the pleasurable feelings experienced during the intercourse may not be regrettable. For
instance Donald et al (2003) indicated that the majority of young people reported that they
felt happy or good following their most recent occasion of sex. Yet Donald and his
colleagues also give no different explicit reasons for adolescent sexual involvement. This
leaves it to emotion, if not pleasurable feelings. While sex may involve emotional
components, the attitudes and reasons for indulging in it may be influenced by other
circumstances. In the next section, I will consider the economic correlates of sexuality
among adolescents.
The power of wealth, general attainment and statuses in society cannot be underestimated
in pushing young people into sexual relationships, among themselves or with older people.
In many developing countries, females have for long been groomed to be dependant on
males. This is not to ignore the fact that there are cases where some wealthy females may
substantially influence young males into sexual relationships due to the need to improve
their economic statuses. The sexual relationships between old people and adolescents have
been termed as sugar daddy or sugar mummy relationships in some of these countries.
Studies on these relationships have stressed the influence of old people on young people
and the likely benefit derived in the long run. For example Kuate-Defo (2004:17) noted
38
that in all these types of relationships, young people; especially girls expect to trade in
their sexual services in exchange for goods and/or money including food, underwear,
clothes, soap, cream, pocket money, rent payment, school fees and/or textbooks. I observe
therefore that poverty does explain some of the adolescents' decisions to engage in sex
On the other hand, there may be relationships between adolescents themselves with
similar connotations. When financial potential is foreseen in any family lineage, the
interested party may do anything to get hooked to it; either by encouraging sexual
encounters with the intention of pregnancy to affirm their commitment or elicit sexual
encounters so as to legally extort financial gains. This could partly tally with what Menon
(1983:834) noted when he observed that for a multitude of reasons, females may accuse
men of sexual assaults to extort money, to force marriage, to satisfy a childish desire for
illicit intercourse, especially when pregnancy results and delusion. While Menon points
fingers at females, poverty in Uganda affects both female and male adolescents who may
get sexually involved to avert such poverty and improve their economic statuses. In the
United Kingdom, poverty may not be necessarily the cause, although education levels
have an influence. For instance, (Singh et al, 2001) found out that early sexual activity has
little association with income, but young women who have little education are more likely
to initiate intercourse during adolescence than those who are better educated. It is in such
complexities that the work of the legal and criminal justice system in any country turns out
to be extremely difficult.
39
Regarding issues of health, there is currently a view that is gaining popularity in the
Ugandan general public that defilement is increasing because of the belief that young girls
are still HIV/AIDS free; and that many go for them with the intention of finding virgins as
wives. In-as-much-as I would agree with such a view, Adeokun et al, (1995:20) found out
and reported from key informants that most cases that are reported involve people who are
not very knowledgeable about the virus. They are not in a position to make the intellectual
connection between avoiding infection and having sex with minors. What is most
disturbing is that some of these offenders are parents; with children in the same bracket as
their victims. Even if polygamy is legal in the Ugandan context as of now, a man of over
50 years, with children of over 18 years; to go for a girl of 14 years as a wife is really
paradoxical. These are the people, if proved to have no mental problems, genuinely
disserve stringent penalties. On the contrary, we see a normal married teacher being
sentenced for only 15 months (The Guardian, 2005) in UK. Parenting is indeed another
aspect that may be blamed for irresponsible and illicit adolescent sexual activity in our
societies. In this case, it may be arguable that poor parenting and problematic family
structures are a cause for adolescent engagement in sex and hence defilement.
Parents and family members are the immediate environment within which all children are
born. They form the microsystem that impacts on the children's development more
intimately (Bronfennbrenner, 1979). The microsystem is the layer closest to the child and
contains the structures with which the child has direct contact. The microsystem
encompasses the relationships and interactions a child has with her immediate
surroundings. Parents will therefore have a profound effect on the behavioural patterns of
their children, sexual activity inclusive. Wilder and Watt, (2002) established that just as
unsafe parental behaviour increases the chance that adolescents will drink, smoke, or use
drugs, parents who engage in risky behaviours may encourage early sexual activity and
40
contraceptive non use by providing a model of low self-efficacy. Parents' risky behaviours
have substantial and independent effects on their children's sexual behaviour. It is arguable
that adolescents whose parents engage in risky behaviour are especially likely to be
sexually active and that risk is reproduced across the generations, perhaps because parents
often serve as role models for their children; willingly or unwillingly, consciously or
unconsciously. It's been observed that exposure of children to risky behaviours has
loving sexual involvements among parents are part of likely modelled behaviours yet they
are out of these ''risk'' connotations. This is arguably because sexual activity may not
necessarily be risk behaviour. It is agreed that teenage sexual activity does not necessarily
lead to sexually irresponsible behaviour (ibid: 510). Therefore, sexual activity is partly a
result of socialisation and consensual sex might be part of this socialisation. In this
context, criminalisation of such seemingly socialized and normal behaviour may not only
CHAPTER FOUR
4.1. Summary
To a large extent, I have argued that the legal approach to defilement in the Ugandan
to observe that this approach to defilement has both weaknesses and strengths. Its
discrimination against the male adolescent in terms of age and consent, as well as failure
to have contextual harmony. It has been seen that the criminalisation of consensual sex
between adolescents cannot be well located in the existing theories of sexual offending. As
27 Marshall and Barbaree (1990:263) noted that exposures to the experiences typical of a sex
offender... make them relatively unable to develop intimacy and to feel empathy... leaves them inept,
lacking in confidence, self-centred, hostile, aggressive, and negatively disposed to women. This makes
adjustment from adolescence to adulthood hard.
41
a consequence, its practical and effective implementation has become complicated and
difficult in legal terms; so much so that the prevalence of defilement as an offence has
become confusing and hard to quantify in Uganda. The portrayal of consensual sex
between adolescents as an offence remains in legal documents like the penal code.
On the contrary, the strengths of defilement as a legal term relate to its ability to protect
children from sexual abusers. Whereas there are mishaps especially in regard to
consensual sex between adolescents, child sexual abusers and paedophiles cannot and
should not be protected. Neither should adolescents who sexually abuse, assault or rape
others be absolved from such criminal responsibility. Juvenile courts should be functional,
their structural defects notwithstanding. Therefore, I have not only considered the view
that defilement as a legal term is flawed, but also indicated avenues where its necessity
and applicability is paramount. However, this necessity has practical complications due to
the autopoeism of contexts within which sex is perceived and enjoyed in different
At this point, it is imperative to appreciate the fact that the criminal justice system and the
policing of crimes of a sexual nature in society have implications for sexual health and
general societal wellbeing. This is so much so that if not harmoniously approached the
humble submission that if we are to attain some level of such harmony, there is a need to
consider seriously the kind of behaviours we criminalise. Following the issues discussed
in this dissertation, implications can be drawn and recommendations made that may be
42
4.2.1 Research and theorising
We have seen that there is no explicit theory that covers the issue of status offenders in its
entirety and that in this regard, the law appears to be lacking such a background. This
implies that criminology has not offered a theory upon which such an offence can be
attested. This complicates its applicability in the real social world. Therefore, research and
theorising in this area need to aim at providing explanations and justifications for the
criminality of sex between consenting adolescents. It is not enough to say that young
females cannot consent to sexual encounters as provided by the law. The truth is that they
do consent and some like and enjoy the sexual experiences. Putting laws in place that don't
have a basis raises issues of legitimacy and defiance (Tyler, 1990). Even mainstream
theories of criminology may fail to explain why defilement is so prevalent despite its
stringent punishments in Uganda and would indeed query the legitimacy of the penal code
provisions thence. For instance, Von Hirsch et al (1999) thought, and in line with the
theory of deterrence, that offenders must realise the changes in severity of punishments,
believe that they cannot escape being caught and that the punishment above will definitely
be applied to them and are willing after considering risks, to change the choices about
offending to be deterred from offending. But this seems not to be the case with consensual
sex among adolescents even when the punishment was raised to death penalty. In the first
place, they are criminals just because the law suggests so in light of their ages. It thus
turns back to the basis and justifications of the penal code sections thereat. If it was
intended to protect children from sexual exploitation, then there should be a clearer
distinction between what is criminal and what is not. Otherwise, if people don't view and
even sociologically understand any behaviour as criminal, they might continue breaking
the law regarding such behaviour. In essence all those who are now married and are below
18 years are criminals in the Ugandan context. This is not a small number though; and in
practical terms many would have been hanged or in prisons for life (life imprisonment).
43
In addition, I think that a criminal offence needs to be proved to the effect that the
relationship don't feel offended, the law criminalises it; and finds itself in practical and
technical difficulties of proving the offender’s guilt. The argument that the state through
the law needs to protect the vulnerable groups does not significantly fit as a justification
for criminalising consensual sex. In this case, it may even be argued that the vulnerable
have become the ones being victimized by the law, where they have to help in the
prosecution efforts (Levine, 2003; Magee, 2006). How the criminalization of consensual
sex among and between adolescents is justifiable remains an aspect of further research.
within which we can criminally defend the criminalization of consensual sex, the sexual
autonomy, part of the human freedoms of young adults are unjustly curtailed.
Sexual autonomy should be viewed to include both the right to engage in wanted sexual
activity and the right to be free and protected from unwanted sexual aggression. It is only
when both of these aspects are recognized that human sexual dignity can be considered
fully respected and upheld (Graupner and Bullough, 2005). This implies that the rights and
freedoms of young people are being compromised in the name of defilement. There needs
Treating adolescents as typical children may be unfair not only to them but also to society
at large. This is because they must be nurtured and allowed to find and form marriage
44
While I agree that child sexual abuse should not be condoned in criminal law, sex between
maturing adolescents seems healthy and need not be made fearful or criminalized, lest we
spoil our future parents. Instead, we need to help them build personal values for
expressing emotions in clear and respectful ways, shape peer norms that value expressing
such emotions and acting in ways that respect themselves and others, and remaining
abstinent whenever necessary and possible. There is need to increase their knowledge and
help them develop skills that enable them to care for their bodies. In this way, future
parents are developed than sent to prison or hanged. Longo, (2004:65) notes that, young
people are naturally curious about sex and will seek out sexual stimuli. Parents, educators,
professionals, and caregivers should not panic when they discover a child's natural
curiosity and exploration. Instead they can use such times as 'teachable moments,' and then
guide the young person to age appropriate materials. The only problem here is that many
parents in Uganda are illiterate and the children appear to know more than them in the
modern world. With the advent of computers and internet technology for example,
adolescents can access a lot of material that their parents or caregivers don't know.
Similarly, children are openly asking questions relating to sexuality and some parents have
adjusted to these new trends through adult and health programmes that are holistic in
nature. This will help them know how to responsibly bring up their children in line with
the modern trends than criminalizing their rather naturally and socially relevant
behaviours and actions. In the event of doing so (criminalizing), there is need to consider
all contexts lest the legal system becomes a victim of challenge and ridicule.
The criminal and legal systems need to consider and seek to attain harmony of contexts
45
within which sexual behaviours of adolescents are exhibited. The questions of why, how,
where and with whom young adults engage in sex (Chalmers, et al, 2006) need to be
critically analysed and addressed when legislating, creating and including sections in the
penal codes. The social, cultural, economic and political dynamisms in any country and/or
society need to work harmoniously to render the legal frameworks plausibly relevant.
Ingham and Aggleton's (2006) edited work, though not in a criminal context, provides a
good analogy of how young people's sexual activities are affected by the wider contexts
within which they live. Appreciation is made of the fact that the integration of all these
contexts into a unified and consensual point is not easy, especially in the area of sexuality,
but making a fool of the legal system like it is in defilement cases is not worthy doing,
neither can it be the best option. In fact, some offenders may circumvent the system due to
such complexities and loopholes; thereby continuing to mock the system and complicate
the work of those in positions of influence. Ingham and Mayhew (2006:209) noted that the
field of sexual and reproductive health poses considerable additional challenges that need
however that the same challenges are posed to adolescents themselves and the criminal
justice system as a whole. Moreover, the adolescents' challenges are worsened by psycho-
Hard as they may be, it is until such contexts are somewhat harmonised that legal
procedures can attain their intended goals to some substantial degree. Otherwise, as it
stands now, the legal war on defilement especially in regard to status offenders in Uganda
46
The Penal Code has some defects that need to be considered in regard to adolescent
issues of age of consent, sex discrimination, and prosecution complexities for real child
abusers. Sexual precocity of girls can help expound on consent and its complexity here. A
girl of 17 years may actually look to be older than her age and is capable of love dating
and love making. Sex with her is illegal (in Uganda), but this may be practically hard to
prove, believe and hence prosecute, especially when the two are in love and have
consented to have sex in their relationship. This implies that the law is somehow
interfering with the normal process of dating, lovemaking and family formation. In this
regard, I suggest that in order to ably protect young people from sexual exploitation but at
the same time allow those that are almost adults the freedom to partner up (finding their
own families as per Article 31(1) of the of the 1995 Constitution of Uganda), the age of
consent needs to be reduced to 16 years. Moreover, those that are below this age but are
genuinely and lovingly involved need not be taken to be ignorant and unable to consent as
the law has always assumed. Instead, parents and the wide social fabric must be nurtured
As for child sexual abusers or defilers, rapists and those who sexually assault, I have no
kind words for them; male or female. It is only unfortunate that the current penal code
seems not to realise that women also sexually victimize males. However, the state needs to
consider the economic implications of prosecution in regard to the defiled victims and
their families; and take action on their behalf more seriously than it is now. Otherwise,
private illegal financial settlement of cases shall always be the solution. On this, Magee
(2006) observed that the state and its structures, by not providing the victim with the
resources to pursue defilement criminally, transform the victims’ problem into a financial
problem. It makes sense and is indeed rational for the victim to seek a financial resolution
to what has now been transformed into a financial problem by the state. Uganda's current
47
scheme may suffer in this way if it is not enhanced with full enforcement against
offenders as I would wish them to, they vividly show how the criminal approaches to
defilement may not make a big difference in its prevention. Many victims’ families will
accordingly resort to financial settlements because the prosecution process itself creates
and warrants spending on their part. Yet such families see no gain in sending an offender,
a probable husband to their daughter (the victim) to prison and then keep her with them.
This is worsened by fears of never to get a suitor due to the loss of the virginity, the much
treasured element in African communities in marriage arrangements. If it gets lost, the one
who has made her loose it must pay dearly for it or else marry her and meet the dowry that
helpful but it will be more helpful if complexities on status offenders are well streamlined
in the whole legal and justice systems especially in the relevant Penal Code sections.
The tendency of the state through police and the general criminal justice system to pry or
implication for their sexual development and health. Young people may end up having sex
with guilt. They may be more preoccupied by secrecy at the expense of their sexual and
reproductive health. In this case, sexual encounters may be stealthily and hurriedly
organised, with less concern about pregnancies or HIV/AIDS. In this way, adolescents
will not take precautions (to use condoms or pills) when they get any slightest opportunity
to have sex. In this respect, I suggest that young people need to be provided with relevant
information and be nurtured to make informed decisions when about sex. The educational
48
and health systems need to work harmoniously with the family structures to address this
rather complex aspect of human life. Threats and criminal sanctions may help but not as
The policing of defilement is hard because police officers have to investigate the offence
fully before charging the accused and committing him to courts of law. But in the case of
consenting adolescents, investigations are very complicated. The lovers may connive with
the supposedly offender and deny to have had sex. In some cases, parents may wish to
have their case settled outside courts (Magee, 2006). Yet, complicated by corruption
linkages like bribes,28 the police in Uganda have been earmarked and accused for
perpetrating settlement of defilement cases outside courts. The work of the police has
indeed been complex, yet few seem to appreciate such dilemmas. It is therefore important
that issues of how to effectively police sex offences among minors are given priority in
4.3. Conclusion
I have in this dissertation shown that defilement is a very broad offence as per its legal
definition. It does not distinctively separate children from adolescents; neither does it take
into consideration the plight of status offenders. I have shown that most legislation have
been based on child sex abusers and use the same basis to approach issues of consensual
sex between young adults. The theoretical frameworks within which sexual offences are
explained are lacking aspects of status offenders. It is only in the legal frameworks and in
a bid to deter child sexual abuse that this aspect can be justified. However, as has been
I have also tried to show that most literature and discourses about defilement do not
28 The CIET found out that in Uganda, the police service was identified as the public sector most
in need of reform. Nearly 60% of Ugandan respondents had been asked for a bribe by the police.
49
clearly spell out its prevalence, especially in the Ugandan legal context. The discrepancies
surrounding the issue of status offenders has not been clearly spelt out in relevant
literature, neither have their threatening numbers been portrayed in the context of
defilement. Many of the studies and discourses just allude that defilement in form of early
marriages are rampant but don't suggest legal proceedings. I conclude that consensual sex
between adolescents may not have been a crime and section 129 of the penal code need
offence in regard to child sexual abusers and paedophiles. These need to be dealt with in
the most stringent way possible; where loopholes exist, the state structures need to address
I have explained some of the factors that make adolescents to engage in sex and that the
difficult. I have suggested that good, properly and comprehensively considered criminal
and legal frameworks will be those that try to harmonise such factors and contexts.
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