THE SEXUAL OFFENCES ACT NO 3 OF 2006, PART 3

  1. (1) Any person, who being in a position of authority, or holding a public office, who persistently makes any sexual advances or requests which he or she knows, or has reasonable grounds to know, are unwelcome, is guilty of the offence of sexual harassment and shall be liable to imprisonment for a term of not less than three years or to a fine of not less than one hundred thousand shillings or to

No. 8 of 2001

Sexual harassment.

(2) It shall be necessary to prove in a charge of sexual harassment

that-

  • the submission or rejection by the person to whom advances or requests are made is intended to be used as basis of employment or of a decision relevant to the career of the alleged victim or of a service due to a member of the public in the case of a public officer;
  • such advances or requests have the effect of interfering with the alleged victim’s work or educational performance or creating an offensive working or learning environment for the alleged victim or denial of a service due to the member of the
  • public from a public

24.(1) Whoever being the superintendent or manager of a jail, remand home or children’s or any institution or any other place of custody established by or under any law takes advantage of his or her official position and induces or seduces any inmate or inhabitant of such jail or institution, remand home, place or institution to have sexual intercourse with him or her, such sexual intercourse not amounting to the offence of rape or defilement shall be guilty of a sexual offence relating to a position of authority and shall be liable upon conviction to imprisonment for a term of not less than ten years.

  • Any person who being a law enforcement officer takes advantage of his or her position and has sexual intercourse or commits any other sexual offence under this Act –
  • within the limits of the station to which he or she is appointed; or
  • in the premises of any station house whether or not situated in the station to which he or she is appointed; or
  • on a person in his or her custody or in the custody of a law

enforcement officer subordinate to him or her,

Sexual offences relating to position of authority and persons in position of trust.

commits an offence of abuse of position of authority and is liable upon conviction to imprisonment for a term of not less than ten years.

  • Any person who being the manager of any hospital or staff of a hospital takes advantage of his or her position and has sexual intercourse with or commits any other sexual offence under this Act with any patient in the hospital, such sexual intercourse not amounting to the offence of rape or defilement shall be guilty of an offence of abuse of position of authority and shall be liable upon conviction to imprisonment for a term of not less than ten years.
  • Any person who being the head-teacher, teacher or employee in a primary or secondary school or special institution of learning whether formal or informal, takes advantage of his or her official position and induces or seduces a pupil or student to have sexual intercourse with him or her or commits any other offence under this Act, such sexual intercourse not amounting to the offence of rape or defilement, shall be guilty of an offence of abuse of position of authority and shall be liable upon conviction to imprisonment for a term of not less than ten
  • Any person who being in a position of trust takes advantage of his or her position and induces or seduces a person in their care to have sexual intercourse with him or her or commits any other offence under this Act, such sexual intercourse not amounting to the offence of rape or defilement, shall be guilty of an offence of abuse of position of trust and shall be liable upon conviction to imprisonment for a term of not less than ten years.

Sexual relationships which pre-date position of authority or trust.

Deliberate transmission of HIV or any other life threatening sexually transmitted disease.

  1. (1) Conduct by a person which would otherwise be an offence under this Act against another person is not an offence under section 24 if, immediately before the position of authority or trust arose, a sexual relationship existed between that person and the other person.
  • Subsection (1) does not apply if at that time sexual intercourse between such persons would have been
  • In proceedings for an offence under this section it is for the accused person to prove that such a relationship existed at that
  1. (1) Any person who, having actual knowledge that he or she is infected with HIV or any other life threatening sexually transmitted disease intentionally, knowingly and willfully does anything or permits the doing of anything which he or she knows or ought to reasonably know –
  • will infect another person with HIV or any other life threatening sexually transmitted disease;
  • is likely to lead to another person being infected with HIV

or any other life threatening sexually transmitted disease;

  • will infect another person with any other sexually transmitted disease,

shall be guilty of an offence, whether or not he or she is married to that other person, and shall be liable upon conviction to imprisonment for a term of not less than fifteen years but which may be for life.

  • Notwithstanding the provisions of any other law, where a person is charged with committing an offence under this section, the court may direct that an appropriate sample or samples be taken from the accused person, at such place and subject to such conditions as the court may direct, for the purpose of ascertaining whether or not he or she is infected with HIV or any other life threatening sexually transmitted disease.
  • The sample or samples taken from an accused person in terms of subsection (2) shall be stored at an appropriate place until finalization of the trial.
  • The court shall, where the accused person is convicted, order that the sample or samples be tested for HIV or any other life threatening sexually transmitted disease and where the accused person is acquitted, order that the sample or samples be
  • Where a court has given directions under subsection (4), any medical practitioner or designated person shall, if so requested in writing by a police officer above the rank of a constable, take an appropriate sample or samples from the accused person concerned;
  • An appropriate sample or samples taken in terms of subsection

(5)-

  • shall consist of blood, urine or other tissue or substance as may be determined by the medical practitioner or designated person concerned, in such quantity as is reasonably necessary for the purpose of determining whether or not the accused person is infected with HIV or any other life threatening sexually transmitted disease; and
  • in the case a blood or tissue sample, shall be taken from a part of the accused person’s body selected by the medical practitioner or designated person concerned in accordance with accepted medical
  • Without prejudice to any other defence or limitation that may be available under any law, no claim shall lie and no set-off shall operate against –
  • the State;
  • any Minister; or
  • any medical practitioner or designated persons, in respect of any detention, injury or loss caused by or in connection with the taking of an appropriate sample in terms of subsection (5), unless the taking was unreasonable or done in bad faith or the person who took the sample was culpably ignorant and negligent.
  • Any person who, without reasonable excuse, hinders or obstructs the taking of an appropriate sample in terms of subsection (5) shall be guilty of an offence of obstructing the cause of justice and shall on conviction be liable to imprisonment for a term of not less than five years or to a fine of not less fifty thousand shillings or to
  • Where a person is convicted of any offence under this Act and it is proved that at the time of the commission of the offence, the convicted person was infected with HIV or any other life threatening sexually transmitted disease whether or not he or she was aware of his or her infection, notwithstanding any other sentence in this Act, he or she shall be liable upon conviction to imprisonment for a term of not less than fifteen years but which may be enhanced to imprisonment for life.
  • For purposes of this section –
  • the presence in a person’s body of HIV antibodies or antigens, detected through an appropriate test or series of tests, shall be prima facie proof that the person concerned is infected with HIV; and
  • if it is proved that a person was infected with HIV after committing an offence referred to in this Act, it shall be presumed, unless the contrary is shown, that he or she was infected with HIV when the offence was

Administering a substance with intent.

  1. (1) Any person commits an offence if he intentionally administers a substance to, or causes a substance to be administered to or taken by, another person with the intention of –
  • stupefying; or
  • overpowering that person,

so as to enable any person to engage in a sexual activity with that person.

  • In proceedings for an offence under this section it is for the complainant to prove that the accused person administered or caused the alleged victim to take any substance with a view to engaging in a sexual activity with the alleged
  • A person guilty of an offence under this section is, in addition to any other offence under this Act, liable on conviction to imprisonment

for a term of not less than ten years.

  1. (1) Any juristic person commits an offence if he intentionally distributes or administers a substance to, or causes a substance to be distributed by other persons with the intention of –
    • stupefying; or
    • overpowering another person,

so as to enable any person to engage in a sexual activity with that other person.

  • In proceedings for an offence under this section it is for the accused person to prove that he did not distribute or cause to be taken any substance with a view to one person engaging into a sexual activity with another
  • A juristic person guilty of an offence under this section is liable on conviction to a fine of not less than five million shillings or imprisonment of its directors for a term of not less than ten years or

Distribution of a substance by juristic person.

  1. Any person who for cultural or religious reasons forces another person to engage in a sexual act or any act that amounts to an offence under this Act is guilty of an offence and is liable upon conviction to imprisonment for a term of not less than ten years.
  2. A person who has been convicted of a sexual offence and who fails to disclose such conviction when applying for employment which places him or her in a position of authority or care of children or any other vulnerable person or when offering or agreeing to take care of or supervise children or any other vulnerable person is guilty of an offence and liable upon conviction to imprisonment for a term of not less than three years or to a fine of not less than fifty thousand shillings or to
  3. (1) A court, in criminal proceedings involving the alleged commission of a sexual offence, may declare a witness, other than the accused, who is to give evidence in those proceedings a vulnerable witness if such witness is –
  • the alleged victim in the proceedings pending before the court;
  • a child; or
  • a person with mental

(2) The court may, on its own initiative or on request of the prosecution or any witness other than a witness referred to in subsection

  • who is to give evidence in proceedings referred to in subsection (1), declare any such witness, other than the accused, a vulnerable

Cultural and religious offences.

Non-disclosure of conviction of sexual offences.

Vulnerable witnesses.

witness if in the court’s opinion he or she is likely to be vulnerable on

account of –

  • age;
  • intellectual, psychological or physical impairment;
  • trauma;
  • cultural differences;
  • the possibility of intimidation;
  • race;
  • religion;
  • language;
  • the relationship of the witness to any party to the proceedings;
  • the nature of the subject matter of the evidence; or
  • any other factor the court considers relevant.
  • The court may, if it is in doubt as to whether a witness should be declared a vulnerable witness in terms of subsection (2), summon an intermediary to appear before the court and advise the court on the vulnerability of such
  • Upon declaration of a witness as a vulnerable witness in terms of this section, the court shall, subject to the provisions of subsection (5), direct that such witness be protected by one or more of the following measures –
  • allowing such witness to give evidence under the protective cover of a witness protection box;
  • directing that the witness shall give evidence through an intermediary;
  • directing that the proceedings may not take place in open

court;

  • prohibiting the publication of the identity of the complainant or of the complainant’s family, including the publication of information that may lead to the identification of the complainant or the complainant’s family; or
  • any other measure which the court deems just and
  • Once a court declares any person a vulnerable witness, the court shall direct that an intermediary referred to in subsection (3), be appointed in respect of such witness unless the interests of justice justify the non-appointment of an intermediary, in which case the court shall record the reasons for not appointing an
  • An intermediary referred to in subsection (3) shall be summoned to appear in court on a specified date, place and time to act as an intermediary and shall, upon failure to appear as directed, appear before the court to advance reasons for such failure, upon which the

court may act as it deems fit.

  • If a court directs that a vulnerable witness be allowed to give evidence through an intermediary, such intermediary may –
  • convey the general purport of any question to the relevant witness;
  • inform the court at any time that the witness is fatigued or stressed; and
  • request the court for a recess.
  • In determining which of the protective measures referred to in subsection (4) should be applied to a witness, the court shall have regard to all the circumstances of the case, including –
  • any views expressed by the witness, but the court shall accord such views the weight it considers appropriate in view of the witness’s age and maturity;
  • any views expressed by a knowledgeable person who is

acquainted with or has dealt with the witness;

  • the need to protect the witness’s dignity and safety and protect the witness from trauma; and
  • the question whether the protective measures are likely to prevent the evidence given by the witness from being effectively tested by a party to the
  • The court may, on its own initiative or upon the request of the prosecution, at anytime revoke or vary a direction given in terms of subsection (4), and the court shall, if such revocation or variation has been made on its own initiative, furnish reasons therefor at the time of the revocation or variation.
  • A court shall not convict an accused person charged with an offence under this Act solely on the uncorroborated evidence of an intermediary.
  • Any person, including a juristic person, who publishes any information in contravention of this section or contrary to any direction or authority under this section or who in any manner whatsoever reveals the identity of a witness in contravention of a direction under this section, is guilty of an offence and liable on conviction to imprisonment for a term of not less than three years or to a fine of not less than fifty thousand shillings or to both if the person in respect of whom the publication or revelation of identity was done is under the age of eighteen years and in any other case to imprisonment for a term of not less three years or to a fine of not less than two hundred thousand shillings or to
  • Any juristic person convicted of any offence under this

section shall be liable to a fine of one million shillings.

  • An accused person in criminal proceedings involving the alleged commission of a sexual offence who has no legal representation shall put any questions to a vulnerable witness by stating the questions to the court and the court shall repeat the questions accurately to the witness.

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