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SEXUAL OFFENCES AMONG ADOLESCENTS

A CRITICAL LITERATURE REVIEW ON DEFILEMENT IN UGANDA

By Muwereza Nathan

A Thesis Submitted for the award of a Master of Philosophy in Criminological


Research

Institute of Criminology, Department of Psychological Criminology


Cambridge University
2007

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

1.0. THE MEANING, THEORIZING AND PREVALENCE OF DEFILEMENT

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

and/or sanctioned respectively.

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

in different countries (ibid:109-114; Lugton, 2006). However, some aspects of sexual

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

appear to complicate legislation, criminal sanctioning and crime prevention efforts

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

are well guided especially regarding adolescents, the future parents.

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

fail to appreciate the interconnectedness of the psychosocial behaviour of humans. Thus,

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.

In this dissertation, I concern myself with defilement as a sexual offence among

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

synthesize some of the variegated and disparate literature on defilement especially in

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

stringent punishment, defilement is prevalent especially when considering its legal

definition. Some insights are also drawn from the United Kingdom and a few from the

United States of America in a comparative and contrasting manner.

1.2. The Meaning of defilement

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,

loving and consensual sexual relationships are being unjustly treated.

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

seeming legal discrimination and injustice.

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

discriminate between sexes as apparently done in defilement. There is a further distinction

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

are also no criminal frameworks for adolescent consensual sex.

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

societal well-being.6 Therefore, addressing sexuality requires a harmonious interplay

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

female potentiality to sexually offend.

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

development and socio-cultural arrangements, it is not good enough an excuse for

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,

such differentiations need to be made when helpful and necessary.

Not to lose track, we need to precisely and comprehensively define an adolescent sex

offender if we are to be understood and justified to be protecting the victim and

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).

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(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

next section will shed light on such a conjecture.

1.3. Theories of sexual offending

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

some of the elements of defilement especially in the Ugandan context.

1.3.1. The integrated theory of the etiology of sexual offending

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

desires characteristic of pubescence. These are influenced by childhood experiences, the

social cultural contexts, and transitory situational factors.

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

adolescents at risk of being sexually victimized as well.9 In-as-much as we need to

recognise the differences in biological, socio-cultural and general differences in sexuality,

issues of sexual offences need objective approaches, especially in regard to those

involving adolescents themselves. Further-more, consensual sex among adolescents has

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

in Uganda are not aggressive, especially those involving consenting adolescents.

Similarly, other sexual offences such as voyeurism and those related to pornography don't

involve direct physical aggression but are sexual offences.

1.3.2. The preconditions theory of child sexual abuse

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

offender must have a motivation - at least an emotional link or at least a kind of

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

unacceptable impulses and be unable to provide the rationality of actions so displayed.

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

lovers but have also defiled adolescents.

It is observable that there can be criticisms for each of the theories advanced to explain the

cause of sexual offending especially in regard to status offenders. Similarly, status

offenders cannot be well situated in most if not all these theories. Thus, the law may need

to be provided with a more comprehensive theory upon which the criminalization of

adolescent consensual sex can be justified in Uganda or elsewhere in the world.

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

that sexual development is affected by a multiplicity of contexts. The preconditions theory

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

criminal sanctions against healthy consensual sexual relationships between adolescents

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

or inhibiting desirable and undesirable behaviours respectively.

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

develops. These included: political, socio-economic, community, interpersonal and

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-

economic correlates and personal psychosocial domains of adolescent sexual

development. Therefore, theorising and legislating about sexual offences among children,

regardless of their nomenclatures and country or location, should be done with a proper

interplay of such contexts.

Concerning status offenders, I posit that without a comprehensive consideration of these

contextual complexities, the prevalence of sexual offences in general and defilement in

particular shall remain problematic. Similarly, prevention of such offences shall continue

to be complicated; especially among adolescents. It may not be surprising that the

portrayal of the prevalence of defilement is obscured by considerations of adult-child

sexual relationships at the expense of adolescent consensual sex.

1.4. Prevalence of defilement

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

intercourse. Among younger adolescents, males are twice as likely to be sexually

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

adolescents face in order to design appropriate policies and interventions. From a

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

attention to the words from the field:

''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

loopholes or else be viewed as scrap.

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.

For instance, a young girl is quoted to have said:

'' ‘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

the empirically compiled relevant literature suggests defilement by implication, while

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

adolescents cannot be taken to be a healthy approach to foster responsible sexual

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

criterion and definition in Uganda is susceptible to many practical challenges. It may be

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

legislation in this regard seems to be off target or simply unnecessary. It is a stretch of

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

offence in empirical studies.

From my experience in Uganda, defilement cases (involving status offenders) become

evident and seem to be considered crimes only when maliciously reported or when they

drop in the hands of the wide-mouthed media in some way.

1.4.1. The role of the media and NGOs on prevalence of defilement

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

been unnecessary. Where it is hinted on, it is complicated by issues of consent, parental

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

never be mentioned, even in the media.

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

different countries; criminalization, policing, trends and statistical quantification of which

may not be easy in any country.

1.4.2. Official statistics and general trends

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

12 See for example Baker, (2005:22) on Multi-choice policing in Uganda


19
for sexual offences against children in 1995. Although there would be changes in figures

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

consensual sex between adolescents is not meant to be an offence.

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

worldwide cannot be underestimated. According to Griffiths (2006:21), seventy-four

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

and in fear of HIV/AIDS infections.13

Similarly, Gates and Sonenstein, (2000:295), in a US national survey of genital sexual

activities of adolescents found out that, fifty-five percent of males aged 14-19 had

engaged in vaginal intercourse. Fifty-three percent had been masturbated by a female.

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

may be complex, if not difficult.

Whereas I acknowledge the complexity and difficulty of legislation and policy

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

some of these dilemmas is made.

CHAPTER TWO

2.0 LEGAL DILEMMAS IN COMBATING DEFILEMENT OFFENCES

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

Consent is ideally a voluntary, sober, imaginative, enthusiastic, creative, wanted,

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

socially constructed meanings of masculinity and femininity. For instance 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

among consenting adolescents is another important aspect of controversy. For instance, if

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

not forget the nature-nurture relationships in our policies regarding development of

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.

Whereas sexual violence, coercion and exploitation of vulnerable children should be

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

discrimination between sexes streamlined, legal dilemmas abound.

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

use adult yardsticks to handle consensual adolescent sexual relationships may be

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,

geographical, and socio-economic background. It is in such cases that criminalising

consensual sex becomes technically and legally difficult.

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

children under 18 as minors, following frequent reports of defilement. However,

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

complicates the legal approach in practical terms. Issues to do with evidence of

penetration, witnessing by minors (the defiled) and corroborating such evidence to prove

them beyond reasonable doubt are indeed complex.

2.4. Evidence and corroboration

It has appeared in some cases that absence of medical evidence on penetration is not

necessarily fatal to the prosecution in a defilement case. In the case of BASSITA

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.

In the case of RUGARAWANA vs Uganda SCCA 39/1995, it was held that in a

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

KATUMBA JAMES vs Uganda SCCA 45/1999, corroboration was defined as additional

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.

Under common law, the evidence of a complainant in a sexual offence must be

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

person on the uncorroborated evidence in a sexual offence. In the case of KIWANUKA vs

UGANDA, criminal appeal 41/1995, the Supreme Court held that it is settled in law that

in sexual offences, though corroboration of the prosecution evidence is not essential in

law, in practice it is always looked for and it is the established practice to warn the

assessors against the danger of acting upon uncorroborated evidence.

Furthermore, the justification for the requirement of corroboration in cases involving

sexual offences was expressed by Lord Justice Salmon in R vs HENRY AND

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

offender in reality, neither is there a victim/complainant.

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

proper understanding of contexts within which adolescent sexual behaviour develops, as

well as the factors contributing to the prevalence of adolescent sexual involvement may

offer insights into better strategies and programmes than criminalisation, whose practical

and theoretical justification is seemingly hard.

CHAPTER THREE

3.0. WHY ADOLESCENT ENGAGE IN SEX AND DEFILEMENT

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),

an independent constitutional body established under Article 51[1] of the 1995

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

to adolescents is more complex and interwoven. Thus, adolescents' objectives for

engaging in sexual activities and the circumstances under which they do so vary from

situation to situation. Although Stammers (1998:1) agrees that a combination of biological

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.

3.2. Cultural practices in form of initiation ceremonies and rituals

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.

I’ll describe some of them for explanatory purposes.

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

traditionally done in the bushes. It is an initiation into adulthood, womanhood and

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

criminal and justice systems.

3.2.2. Circumcision rituals, ceremonies and manhood

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

cultural hindrances to aspects of sexuality such as myths that inhibited adult-child

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

complicate efforts of criminalizing, policing and prosecuting sex offenders worldwide.

3.3. Media, pornography and the internet

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

pornography like in the United Kingdom or United States, criminalisation of adolescent

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

pornography in relation to child sexual criminality than newspapers and TV programmes,

yet comprehensive strategies to discriminate what can be accessed by adolescents are also

complicated.

3.3.2. Pornography and the internet

Pornography is a word whose original Greek meaning has metamorphosed tremendously

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

can be a difficult job.

According to Illman and Newcombe (2006), pornography is illegal when it is perceived to

be obscene. This is different to being 'sexually explicit'. Whether a pornographic article is

obscene is something that is decided by a jury. They do this by deciding if it is likely to

'deprave and corrupt'. So pornography that is not deemed to be 'obscene' is legal in the UK

and it is not an offence to look at it on the Internet. It is not an offence to have

pornography in your possession, but it is an offence to distribute or publish porn that may

'deprave or corrupt'. This might be interpreted as being in possession of illegal material

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

complicated to prove. For instance, in ATKINS v. DIRECTOR OF PUBLIC

PROSECUTIONS, it was concluded that whilst "making" includes intentional copying, it

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,

1998), criminalisation of which remains unjustified if not difficult.

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

adolescents is of concern here. To allow adult pictures to be used in pornography is as

good as feeding the adolescents on the same food which you don't want them to produce

themselves. Profitable in commercial terms as it is, would a total ban on pornography as a

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

the law, yet it affects human attitudes and emotions.

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

instance, see one of the field interview quotations:

''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.

3.5. Socio-economic and health factors

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

with adults in the Ugandan context. In such circumstances criminalization and/or

prosecution of such offences is seemingly difficult because victims view offenders as

bread-winners and may defend them in courts of law.

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

notoriety, or to attain personal revenge to obviate a sense of shame after consenting to

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.

3.6. Parental and familial factors

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

implications to their subsequent behavioural development.27 Conversely, consensual

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

be polemical but also hard to practically defend.

CHAPTER FOUR

4.0. SUMMARY, RECOMMENDATIONS AND CONCLUSION

4.1. Summary

To a large extent, I have argued that the legal approach to defilement in the Ugandan

context is flawed; especially regarding adolescent consensual sex. It is however important

to observe that this approach to defilement has both weaknesses and strengths. Its

weaknesses stem from the treatment of adolescents as young versions of adults,

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.

Otherwise, much literature portrays it as a healthy problem than a crime.

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

societies and countries, all of which have various implications.

4.2 Implications and recommendations.

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

sexual health and development of children and young adults is in jeopardy. It is my

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

helpful in some way.

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

aggrieved party actually feels offended. Whereas females in a consenting sexual

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.

Consequently, without proper empirical studies and provision of theoretical frameworks

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.

4.2.2. Autonomy in Sexuality

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

to be a clearer distinction between children and adolescents in sexuality and crime.

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

relationships with responsibility and autonomy.

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

appeared to be embarrassed by such questions. There is therefore need to have parents

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.

4.2.3. The dynamic contextual harmony

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

to be considered, including: a whole raft of religious, cultural, social and community

attitudes that affect responses of those in positions of influence. It should be noted

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-

biological components of their sexuality.

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

seems to have been lost.

4.2.4. The Legal redress

46
The Penal Code has some defects that need to be considered in regard to adolescent

sexuality and especially pertaining to status offenders. This is especially in respect to

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

to nurture such relationships so as to have responsible future families therein.

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

defilement. Although Magee's observations do not discriminate and distinguish between

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

would indeed be paid normally.

By way of recommendation, I observe that full enforcement of the law on defilement is

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.

4.2.5. Sexual health and policing defilement in the community

The tendency of the state through police and the general criminal justice system to pry or

to be seen to be doing so into adolescents' sexuality is of paramount concern and

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

effectively as proper information provision.

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

research and policy frameworks, the intricacy of their criminalization notwithstanding.

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

indicated, it may complicate the smooth adolescent sexual development.

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

revision or amendment. However, I have not rubbished 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 have explained 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

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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