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. 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:
- Where the offender (adult) is HIV positive or AIDS;
- 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.
- Where the offender is a person with authority over the victim e.g. a teacher
- Where the victim (child) is a person with a disability e.g. Physical disability, deaf, speech impairment/ disability, mental health conditions etc.
- 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.