THE SEXUAL OFFENCES ACT NO 3 OF 2006, PART 2

Gang rape.

7 of 2007, Sch.

Indecent act with child or adult.

7 of 2007, Sch.

Cap. 92

Act No. 8 of 2001

Indecent act with adult.

7 of 2007, Sch. Promotion of sexual

  1. Any person who commits the offence of rape or defilement under this Act in association with another or others, or any person who, with common intention, is in the company of another or others who commit the offence of rape or defilement is guilty of an offence termed gang rape and is liable upon conviction to imprisonment for a term of not less fifteen years but which may be enhanced to imprisonment for life.
  2. (1) Any person who commits an indecent act with a child is guilty of the offence of committing an indecent act with a child and is liable upon conviction to imprisonment for a term of not less than ten years.
  • It is a defence to a charge under subsection (1) if it is proved that such child deceived the accused person into believing that such child was over the age of eighteen years at the time of the alleged commission of the offence, and the accused person reasonably believed that the child was over the age of eighteen
  • The belief referred to in subsection (2) is to be determined having regard to all the circumstances, including the steps the accused person took to ascertain the age of the complainant.
  • Where the person charged with an offence under this Act is below the age of eighteen years, the court may upon conviction, sentence the accused person in accordance with the provisions of the Borstal Institutions Act and the Children’s
  • The provisions of subsection (2) shall not apply if the accused person is related to such child within the prohibited degrees of blood or
  • (Repealed by 7 of 2007, Sch.).

11A. Any person who commits an indecent act with an adult is guilty of an offence and liable to imprisonment for a term not exceeding five years or a fine not exceeding fifty thousand shillings or to both.

  1. A person including a juristic person who –
  • manufactures or distributes any article that promotes or is intended to promote a sexual offence with a child; or
  • who supplies or displays to a child any article which is intended to be used in the performance of a sexual act with the intention of encouraging or enabling that child to perform such sexual act,

is guilty of an offence and is liable upon conviction to imprisonment for a term of not less than five years and where the accused person is a juristic person to a fine of not less than five hundred thousand shillings.

offences with a child.

child-

  1. A person including a juristic person who, in relation to a

Child trafficking.

  • knowingly or intentionally makes or organizes any travel arrangements for or on behalf of a child within or outside the borders of Kenya, with the intention of facilitating the commission of any sexual offence against that child, irrespective of whether the offence is committed;
  • supplies, recruits, transports, transfers, harbors or receives a child, within or across the borders of Kenya, for purposes of the commission of any sexual offence under this Act with such child or any other person,

is, in addition to any other offence for which he or she may be convicted, guilty of the offence of child trafficking and is liable upon conviction to imprisonment for a term of not less than ten years and where the accused person is a juristic person to a fine of not less than two million shillings.

  1. A person including a juristic person who –
  • makes or organizes any travel arrangements for or on behalf of any other person, whether that other person is resident within or outside the borders of Kenya, with the intention of facilitating the commission of any sexual offence against a child, irrespective of whether that offence is committed; or
  • prints or publishes, in any manner, any information that is intended to promote or facilitate conduct that would constitute a sexual offence against a child
  • introduces, organizes or facilitates contact with another person under the auspices of promoting tourism, in any manner, in order to promote conduct that would constitute a sexual offence against a child,

is guilty of an offence of promoting child sex tourism and is liable upon conviction to imprisonment for a term of not less than ten years and where the accused person is a juristic person to a fine of not less than two million shillings.

Child sex tourism.

Child prostitution.

Child pornography. 7 of 2007, Sch.,

6 of 2009, Sch.

  1. Any person who –
  • knowingly permits any child to remain in any premises, for the purposes of causing such child to be sexually abused or to participate in any form of sexual activity or in any obscene or indecent exhibition or show;
  • acts as a procurer of a child for the purposes of sexual intercourse or for any form of sexual abuse or indecent exhibition or show;
  • induces a person to be a client of a child for sexual intercourse or for any form of sexual abuse or indecent exhibition or show, by means of print or other media, oral advertisements or other similar means;
  • takes advantage of his influence over, or his relationship to a child, to procure the child for sexual intercourse or any form of sexual abuse or indecent exhibition or show;
  • threatens or uses violence towards a child to procure the child for sexual intercourse or any form of sexual abuse or indecent exhibition or show;
  • intentionally or knowingly owns, leases, rents, manages, occupies or has control of any movable or immovable property used for purposes of the commission of any offence under this Act with a child by any person;
  • gives monetary consideration, goods, other benefits or any other form of inducement to a child or his parents with intent to procure the child for sexual intercourse or any form of sexual abuse or indecent exhibition or show,

commits the offence of benefiting from child prostitution and is liable

upon conviction to imprisonment for a term of not less than ten years.

  1. (1) Any person including a juristic person who –

(aa) sells, lets to hire, distributes, publicly exhibits or in any manner puts into circulation, or for purposes of sale, hire, distribution, public exhibition or circulation, makes, produces or has in his or her possession any obscene book, pamphlet, paper, drawing, painting, art, representation or figure or any other obscene object whatsoever which depict the image of any child;

  • knowingly displays, shows, exposes or exhibits obscene images, words or sounds by means of print, audio-visual or any other media to a child with intention of encouraging or enabling a child to engage in sexual
  • imports, exports or conveys any obscene object for any of

the purposes specified in subsection (1), or knowingly or

having reason to believe that such object will be sold, let to hire, distributed or publicly exhibited or in any manner put into circulation;

  • takes part in or receives profits from any business in the course of which he or she knows or has reason to believe that any such obscene objects are, for any of the purposes specifically in this section, made, produced, purchased, kept, imported, exported, conveyed, publicly exhibited or in any manner put into circulation;
  • advertises or makes known by any means whatsoever that any person is engaged or is ready to engage in any act which is an offence under this section, or that any such obscene object can be produced from or through any person; or
  • offers or attempts to do any act which is an offence under this section,

is guilty of an offence of child pornography and upon conviction is liable to imprisonment for a term of not less than six years or to a fine of not less than five hundred thousand shillings or to both and upon subsequent conviction, for imprisonment to a term of not less than seven years without the option of a fine.

(2) This section shall not apply to –

  • a publication which is proved to be justified as being for the public good on the ground that such book, pamphlet, paper, writing, drawing, painting, art, representation or figure is in the interest of science, literature, learning or other objects of general concern;
  • any book, pamphlet, paper, writing, drawing, painting, representation or figure which is kept or used bona fide for religious purposes;
  • any representation sculptured, engraved, painted or otherwise represented on or in any ancient monument recognized as such in law; and
  • activities between two persons of over eighteen years by mutual consent.

(3) For the purposes of subsection (1), a book, pamphlet, paper, drawing, painting, art, representation or figure or any other object shall be deemed to be obscene if it is lascivious or appeals to the prurient interest or if its effect, or where it comprises two or more distinct items the effect of any one of its items, if taken as a whole, tends to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it.

  1. Any person who –

Exploitation of prostitution.

  • intentionally causes or incites another person to become a prostitute; and
  • intentionally controls any of the activities of another person relating to that persons prostitution; and does so for or in expectation of gain for him or her self or a third person,

is guilty of an offence and is liable upon conviction to imprisonment for a term of not less than five years or to a fine of five hundred thousand shillings or to both.

Trafficking for sexual

exploitation.

Prostitution of persons with mental disabilities.

  1. (1) Any person who intentionally or knowingly arranges or facilitates travel within or across the borders of Kenya by another person and either –
  • intends to do anything to or in respect of the person during or after the journey in any part of the world, which if done will involve the commission of an offence under this Act; or
  • believes that another person is likely to do something to or in respect of the other person during or after the journey in any part of the world, which if done will involve the commission of an offence under this Act,

is guilty of an offence of trafficking for sexual exploitation.

  • A person guilty of an offence under this section is liable upon conviction, to imprisonment for a term of not less than fifteen years or to a fine of not less than two million shillings or to

19.(1) A person who, in relation to a person with mental disability, for financial or other reward, favour or compensation to such person with mental disability or to any other person, intentionally –

  • commits any offence under this Act with such person with disabilities;
  • invites, persuades or induces such person with disabilities to allow him or her to commit any offence under this Act with such person with disabilities;
  • makes available, offers or engages such person with disabilities for purposes of the commission of any offence under this Act with any person;
  • supplies, recruits, transports, transfers, harbours or receives such person with disabilities, within or across the borders of Kenya, for purposes of the commission of any offence under this Act with any person;
  • allows or knowingly permits the commission of any offence under this Act by any person with such person with disabilities;
  • knowingly or intentionally owns, leases, rents, manages, occupies or has control of any movable or immovable property used for purposes of the commission of any offence under this Act with such person with disabilities by any

person;

  • detains such person with disabilities, whether under threat, coercion, deception, abuse of power or force for purposes of the commission of any offence under this Act with any person; or
  • participates in, is involved in, promotes, encourages or facilitates the commission of any offence under this Act with such person with disabilities by any person,

is, in addition to any other offence which he or she may be convicted, guilty of the offence of being involved in the prostitution of a person with disabilities and shall, upon conviction, be liable to imprisonment for a term of not less than ten years.

  • A person who intentionally lives wholly or in part on rewards or compensation or receives financial or other reward, favour or compensation from the commission of any offence under this Act with a person with disabilities by another person is guilty of an offence of benefiting from prostitution of a person with disabilities and is liable upon conviction to imprisonment for a term of not less than ten
  • Any person including a juristic person who –
  • knowingly or intentionally makes or organizes any travel arrangements for or on behalf of any person, whether that person is resident within or outside the borders of Kenya, with the intention of facilitating the commission of any sexual offence against a person with disabilities, irrespective of whether that offence is committed or not; or
  • prints or publishes, in any manner, any information that is intended to promote or facilitate conduct that would constitute a sexual offence against a person with disabilities,

is guilty of an offence of promoting sex tourism with persons with disabilities and is liable upon conviction to imprisonment for a term of not less than ten years or to a fine of not less than two million shillings.

  • A juristic person convicted of an offence under this section is

liable upon conviction to a fine of not less than two million shillings.

  1. (1) Any male person who commits an indecent act or an act which causes penetration with a female person who is to his knowledge his daughter, granddaughter, sister, mother, niece, aunt or grandmother is guilty of an offence termed incest and is liable to imprisonment for a term of not less than ten years:

Provided that, if it is alleged in the information or charge and proved that the female person is under the age of eighteen years, the accused person shall be liable to imprisonment for life and it shall be

Incest by male persons.

immaterial that the act which causes penetration or the indecent act was obtained with the consent of the female person.

  • If any male person attempts to commit the offence specified in subsection (1), he is guilty of an offence of attempted incest and is liable upon conviction to a term of imprisonment of not less than ten years.

No. 8 of 2001.

Incest by female persons.

Test of relationship.

  • Upon conviction in any court of any male person for an offence under this section, or of an attempt to commit such an offence, it shall be within the power of the court to issue orders referred to as “section 114 orders” under the Children’s Act and in addition divest the offender of all authority over such female, remove the offender from such guardianship and in such case to appoint any person or persons to be the guardian or guardians of any such female during her minority or less period.
  1. The provisions of section 20 shall apply mutatis mutandis with respect to any female person who commits an indecent act or act which causes penetration with a male person who is to her knowledge her son, father, grandson grand father, brother, nephew or
  2. (1) In cases of the offence of incest, brother and sister includes half brother, half sister and adoptive brother and adoptive sister and a father includes a half father and an uncle of the first degree and a mother includes a half mother and an aunt of the first degree whether through lawful wedlock or
  • In this Act –
  • “uncle” means the brother of a person’s parent and “aunt” has a corresponding meaning;
  • “nephew” means the child of a person’ s brother or sister and “niece” has a corresponding meaning;
  • “half-brother” means a brother who shares only one parent with another;
  • “half-sister” means a sister who shares only one parent with another; and
  • “adoptive brother” means a brother who is related to another through adoption and “adoptive sister” has a corresponding meaning.
  • An accused person shall be presumed, unless the contrary is proved, to have had knowledge, at the time of the alleged offence, of the relationship existing between him or her and the other party to the
  • In cases where the accused person is a person living with

the complainant in the same house or is a parent or guardian of the complainant, the court may give an order removing the accused person from the house until the matter is determined and the court may also give an order classifying such a child as a child in need of care and protection and may give further orders under the Children’s Act.

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