The penal code holds it that a child is one below the age of eighteen and an adult is eighteen and above, punishing defilement upon an eighteen-year-old who has consensual sex with a seventeen-year-old despite the fact that they are of the same mental capacity due to the same age range.
Experts have criticised the penal code, calling for the revision of article 133 to consider the age range of the parties involved in consensual sex.
It is weakness of the law to consider it a fact that an age difference of one year is enough to incriminate the one who is older as one who has more physical and mental capacity than the other.
Consensual sex is about the reasoning of the parties involved which the law omits when it holds that a seventeen-year-old young woman cannot reason to the same level as an eighteen-year-old young man, for example.
In many countries in Europe and most states of the United States, the age range is considered even when their punishments for defilement are not as too aggressive as the ones in Rwanda.
For instance, Finland laws consider the range of mental and physical maturity when delivering justice in defilement cases.
“An act that does not violate the sexual self-determination of the subject and where there is no great the difference in the mental and physical maturity of the parties shall not be deemed sexual abuse of a child” the law says
The fact of the age range in consensual sex is considered in the Rwandan defilement article but it ironically drops at the age of eighteen, a time it would actually be necessary.
Article 133 of 2018 penal code says that “If child defilement is committed between children aged at least fourteen (14) years without violence or threats, no penalty is pronounced”.
This means that consensual sex between a fourteen-year-old young woman for example and a seventeen-year-old young man is not punished for defilement because they are in the same age range.
A fourteen-year-old young woman and a fifteen-year-old young man can have consensual sex for three years without being punished before the boy turns eighteen when he can be handed life imprisonment for defiling a child he has been having sex with for the last three years.
For example, if A is a fourteen-year old young woman and B is a fifteen-year-old young man and have sexual intercourse this year 2021, the law will not punish any of them for this year and next year 2022 when A will be fifteen and B sixteen.
In 2023 A will be sixteen and B will be seventeen and they will continue to enjoy the consensual sex without any interference of the law because they are in the same age range.
But in 2024 when A will be seventeen and B will be eighteen, B will be arrested as an “adult” who is defiling the “child” and can be imprisoned for life in jail for defiling the “child” he has been having sexual intercourse with three years before.
We need a law that considers the age range in punishing defilement, a law that understands that an eighteen-year-old has no different mental or physical capacity from a seventeen-year-old on something they consent to do together.
Kigali Law Tidings Editorial