Can someone be arrested for having sexual intercourse with a minor (boy or girl under 18 years) even when they consent or do not get pregnant? - Justice Centres Uganda
legal advice: defilement

Can someone be arrested for having sexual intercourse with a minor (boy or girl under 18 years) even when they consent or do not get pregnant?

CHILDREN’S RIGHTS

The short answer to this question is YES, under the offence of DEFILEMENT.

Defilement is where a person (offender) performs a sexual act with a child (victim).

A child under the law is a person that is below 18 years of age. Offenders that can be arrested and charged: adult (18 years and above). It is assumed by law that a child of 12 years and below cannot be capable of knowing the difference between right and wrong and should therefore not be held criminally responsible.

Consent to the sexual act and/or someone not getting pregnant are not defenses. In cases of defilement, issues of consent and pregnancy are irrelevant. This means that whether one has agreed to it or has not ended up pregnant is not a defence. The sexual act itself is seen as a crime by law.

Already the attempt to commit defilement is an offence and therefore punishable. So where one tries to perform a sexual act with a child (below 18 years) and does not succeed, the matter can still be reported to police and the culprit arrested and convicted if found guilty.

Defilement can be classified by the law into 2 different categories

This is based on the specific age of the child and special circumstances surrounding the persons involved in the sexual act. The sexual act itself is seen as a crime by law! Sexual Act means penetration of the vagina, mouth or anus, however slight, of any person by a sexual organ or the unlawful use of any object or organ by a person on another person’s sexual organ (eg. banana, stick etc.). These forms are highlighted and discussed below;

1. (Simple) Defilement:

The sexual intercourse between an adult and a child above 14 years which is a an offence whereof the adult is liable on conviction, to imprisonment for 18 years.

2. Aggravated Defilement:

Defilement is aggravated if the adult performs sexual intercourse with a very young child (between days old to 14 years) or these other special circumstances are prevalent:

  1. Where the offender (adult) is HIV positive or AIDS;
  2. Where the offender is a blood relative to the victim and/or is in authority over the child e.g. a parent, an uncle, aunt etc.
  3. Where the offender is a person with authority over the victim e.g. a teacher
  4. Where the victim (child) is a person with a disability e.g.  Physical disability, deaf, speech impairment/ disability, mental health conditions etc.
  5. Where the offender is a serial offender i.e. has committed the offence more than once.

These circumstances are taken to be severe and therefore carry a more serious punishment which is a maximum sentence of death.

Please keep always in mind:

  • The offence of defilement does not apply to only girls. Boys too can be victims of defilement. Additionally, both males and females can be arrested for committing the offence of defilement.
  • Defilement is an offence punishable by both imprisonment and death. It should be avoided so that both adults and children do not end up in prison.
  • Where one does not get pregnant, they can still be arrested and charged with defilement.
  • Even if both persons agree to have sexual intercourse, as long as one of them is below 18 years, it is still defilement.
  • If in a relationship one of the persons is below 18 years, they should endeavour to abstain from sex and where the situation gets out of hand use protection. This however will not eliminate the crime.
  • Adults should desist from engaging in sexual intercourse with children below 18 years or else they stand a chance of being imprisoned for life or facing a punishment of death.
  • Instances of early marriages can result in defilement.
  • Traditions, norms, culture are NOT an argument to overcome defilement.
  • Parents should desist from marrying off girls below the age of 18 years because this too is defilement.
  • Other solutions where parents have a joint agreement with financial benefits of one of the parties are illegal.
  • Once an offence of defilement has been committed it cannot be settled out of court. All remedies to this offence are given by court.

Steps to be followed by the victim to obtain justice

Where the offence of defilement has been committed the following should be taken:

  1. The matter should be reported to the police.
  2. A statement is taken from the victim by the police.
  3. The offender is arrested.
  4. The offender’s statement is taken.
  5. A medical examination is conducted on the victim to confirm the sexual act and a medical report is being written to that effect.
  6. The offender will be taken to court and charged accordingly.
  7. Where the offender is found guilty he/she will be imprisoned.

How JCU can help you?

  • JCU offers basic Legal Advice to the offender or victim.
  • JCU coordinates with the State Attorney and Police to ensure the victim receives justice.
  • JCU watches the proceedings in court to ensure they are handled in accordance with the law.
  • JCU refers the victims affected to institutions where they can receive assistance in the form of shelter, medical support, counseling or any other immediate help that we cannot offer.

Organizations or bodies that can help one access justice

  1. The Area Local Council Chairperson
  2. The Uganda Police (Children & Family Protection Unit)
  3. Justice Centres Uganda

Referral Institutions

  1. Legal Aid Project of the Uganda Law Society – Provides basic legal advice to any persons that need guidance on sexual related offences or those in conflict with the law.
  2. Action Aid – Provides shelter and counselling for victims of defilement and other sexual related offences.
  3. Wakisa Ministries – Providing shelter and counselling for pregnant girls who have been thrown out of their homes.
  4. SAUTI (toll free number 116) – Provides counselling to victims of defilement and other sexual related offences
  5. CRANE Children At Risk Network – Provides counseling, empowerment and support for children with special needs

Sources of Information

  1. The Constitution of the Republic of Uganda 1995
  2. The Children (Amendment) 2016
  3. The Penal Code Act Cap 120
  4. The Penal Code (Amendment) 2007
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