Sexual Offences Among Adolescents

SEXUAL OFFENCES AMONG ADOLESCENTS A CRITICAL LITERATURE REVIEW ON DEFILEMENT IN UGANDA By Muwereza Nathan A Thesis Submitted for the award of a Master of Philosophy in Criminological Research Institute of Criminology, Department of Psychological Criminology Cambridge University 2007 Abstract In this dissertation, I analyse defilement as a crime, sexuality and attitudes towards sex among adolescents. I link these attitudes to the prevalence of defilement cases in Uganda as a country. The analysis showed that youths have positive attitudes towards sex and are emotionally weak when it came to sexual pleasure. Traditional beliefs and superstitious approaches to sex contributed to unsafe sexual practices among adolescents. I also show that defilement is a very broad offence as per its legal definition, and with practical loopholes. It does not distinctively separate children from adolescents; neither does it take into consideration the plight of status offenders (offenders by virtue of their ages). It showed that much of the legislation is based on child sex abusers and use the same basis to approach issues of consensual sex between young adults. The theoretical frameworks within which sexual offences are explained are lacking in many aspects of status offenders. It is only in the legal frameworks and in a bid to deter child sexual abuse that this aspect can be justified. However, as was indicated, it has complicated the smooth adolescent health and sexual development. I try to show that most literature and discourses about defilement do not clearly spell out its prevalence, especially in the Ugandan legal context. The discrepancies surrounding the issue of status offenders has not been clearly spelt out in relevant literature, neither have their threatening numbers been portrayed in the context of defilement. Many of the studies and discourses just alluded that defilement in form of early marriages are rampant but don't suggest legal proceedings. I concluded that consensual sex between adolescents may not have been a crime and section 129 of the penal code of Uganda needed revision or amendment. However, I do not rubbish the usefulness of defilement as an offence in regard to child sexual abusers and paedophiles. These need to be dealt with in the most stringent way possible; where loopholes exist, the state structures need to address them to effectively and fruitfully administer justice. I explain some of the factors that make adolescents to engage in sex and that the interconnectedness of such factors makes legislation and prevention of sexual offences as well as the spread of HIV/AIDS and other Sexually Transmitted Diseases difficult. I suggest that good, properly and comprehensively considered policy, criminal and legal frameworks will be those that try to harmonise such factors. 1

CHAPTER ONE: BACKGROUND 1.0.

THE MEANING, THEORIZING AND PREVALENCE OF DEFILEMENT

1.1.

Introduction

Many studies show that worldwide, adolescents are sexually active (Moore et al, 2006; Remez, 2000; Bagley, 1997) either amongst themselves or with adults. This might be with or without adolescents' consent. While there are generally similar approaches to the criminalisation of sex between adults and children in many countries, there exist much more nuanced methods of using criminal sanctions to regulate sexual behaviour among adolescents in different countries. In addition, given the specific contexts within which sexuality and sexual relationships develop, sexual offences present complex cases for both courts of law and the entire criminal justice systems of many countries.

Although sexual offences are perhaps the most shameful and feared among humans, they are on the increase. For instance, it was indicated that in the United Kingdom, sexual offences had increased in subsequent years.1 Additionally, their typologies and prevalence vary and are hard to quantify. As a result, studies that involve and relate to child sexuality and offending have tended to focus on child sexual abuse. Moreover, according to Wazir and van Oudenhoven, (1998), child sexual abuse itself is also complex in profiling. It is in this same focus that theories, measures and/or legislation seem to be advanced, enacted and/or sanctioned respectively.

The above notwithstanding, sexual offences have generally attracted a lot of attention in recent years. Engineered by scandals, media reports, pressure groups as well as some empirical research, reactionary policies and legislations have been conceived and enacted in different countries (ibid:109-114; Lugton, 2006). However, some aspects of sexual 1

See for example Povey et al (2000:1) on crime statistics in England and Wales.

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offending that have been taken for granted and seem to be misinterpreted, relate to sex between adolescents themselves. Aspects such as consent and appropriate age for the same appear to complicate legislation, criminal sanctioning and crime prevention efforts worldwide. Much of the legislations and policies are generally being based on adult yardsticks, and seem to treat adolescents as young versions of adults. While reactionary policies and sanctions may be necessary in the short run, multifaceted and contextually appropriate approaches are needed in the long run, lest there be creation than reduction of crime. On this aspect, it has been noted that the adverse effects of misguided programming in existing criminal justice institutions in the United States, particularly enforcement, the courts, and corrections actually contribute to the crime problem (Silvester, 1987:121-122). It is therefore important that programmes that address any social issue such as sexuality are well guided especially regarding adolescents, the future parents.

It has become increasingly evident that adolescent sexuality is a complicated social aspect not only in criminology, but also in health and other spheres of human life (Chalmers et al, 2006; Ingham and Aggleton, 2006). In the criminological sphere, when adolescent sex offenders are viewed as not adults, they are generally over protected and absolved from moral responsibility for their behaviours. When they are viewed as not children, there is a tendency to deal more punitively with them than with adults who commit similar sexual offences.2 In line with this, the type of sexual offence is an issue that needs clarity in regard to adolescents. This is because some behaviours and actions may not be offences in the real socially constructed world. 'Status offenders' do provide a good example in this regard. These are defined as children and teens whose sexual behaviours are consensual and with partners close to or in their age brackets; but such behaviours are unlawful only because they (teens) or their partners or both of them are under the age of consent 2

See also Reiss, (1960) who in addition argued that the failure to accord adolescents a distinct status position that is closely integrated with the larger structure for governing their behaviour has important implications for defining and sanctioning their sexual conduct in our societies.

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(Zimring, 2004:2). I personally and throughout this dissertation consider these as victims of merely unjust legislations and criminal sanctions that may lack comprehensiveness, and fail to appreciate the interconnectedness of the psychosocial behaviour of humans. Thus, while there are notable differences regarding the meanings of different types of sexual offences and how they are handled in different countries, states or cultures,3 common loci should exist when considering the effects, policies or legal approaches that seek to address them.

In this dissertation, I concern myself with defilement as a sexual offence among adolescents. The justification for using this specific term is explained in the next section. I specifically address dilemmas that surround 'status offenders' and criminal law. I synthesize some of the variegated and disparate literature on defilement especially in regard to its meaning, prevalence, legal dilemmas and inherent failures. I also explore other related and probable explanations for prevalence of sexual activity and defilement by and/or among adolescents. I infer and argue that the criminalisation of consensual sex between adolescents is not only hard in theoretical, practical and/or policing terms but may also have negative implications for adolescent sexual health and development. I delve more into the Ugandan situation and draw much of my focus thence. Here, despite its stringent punishment, defilement is prevalent especially when considering its legal definition. Some insights are also drawn from the United Kingdom and a few from the United States of America in a comparative and contrasting manner.

1.2. 3

The Meaning of defilement

See for example Wazir & van Oudenhoven, (1998:3) who indicated that lack of consensus in defining sexual offences is caused in part by multicultural societies; and noted that perceptions of what constitutes sexual abuse are culturally and socially determined, with the result that acts which are considered offensive in one cultural context may be quite normal in another.

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Defilement is a legal term used specially in Uganda and some other African and developing countries to refer to a sexual crime in which the victim is a girl under a specifically defined age (18 years for Uganda). It is derived from the word 'defile' that compares with the word 'spoil'. Its meaning and intent then implies that the law needed to guard against spoiling of girls' sexuality. It is stated in the Penal Code Act of the laws of Uganda that any person who unlawfully has sexual intercourse with a girl under the age of eighteen years commits an offence and is liable to suffer death.4 This is irrespective of the age of the offender and the victim's consent to the sexual encounter. While I acknowledge the sexual vulnerability of girls in society, I observe that young males in even healthy, loving and consensual sexual relationships are being unjustly treated.

In the United Kingdom, there are crimes that compare with defilement such as child sexual abuse. But these are more categorised in terms of age limits and differentials. The equivalent of defilement in the Unites States of America is statutory rape. Again, there are considerations of age limits (that are different in different states). The two offences (child sexual abuse and statutory rape) above also cover male and female offenders in detail. Evidently therefore, definitions and meanings of sexual offences are different and varied in different countries. However, defilement (as seen in the above definition) does not cater for sexual abuse of males of the same age as is the case in the United Kingdom and the United States of America. It is plausible to observe that these definitional mishaps are in part the cause of practical challenges in applying the legal sanctions on defilement, hence seeming legal discrimination and injustice.

In English law, there are several sexual offences and among them are those that relate to

4

See section 129 of the Penal Code Act - chapter XIV (in Chapter 120 of the laws of Uganda).

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children.5 There are detailed sections in the Sexual Offences Act 2003 that provide a better basis to apprehend offenders in regard to child sexual offences than those for defilement. For example, sections 9 and 13 clearly define what it means to sexually offend and do not discriminate between sexes as apparently done in defilement. There is a further distinction in relation to consenting ages. However there are also no provisions for sex between consenting children themselves and there is cause for alarm in this area in the United Kingdom as well. Although some of the loopholes could be covered by the juvenile arrangements, which are not well developed for Uganda, it is still a challenge since there are also no criminal frameworks for adolescent consensual sex.

From the above comparative definitions of sexual offences, there are connotations to the effect that they (especially for defilement in Uganda) implicate the male victim of any sexual encounter. In this case it is envisaged that there must be a penetration of the penis into the vagina. It is further presumed that a female cannot defile a male because she has no penis to penetrate into any hole on a male. But sexuality entails broader meanings and need not be restricted to only vaginal penetration. Costa and Wood, (2005:18) vividly showed that sexuality encompasses the sexual knowledge, beliefs, attitudes, values and behaviours of individuals, and is an integral part of the personality of every human being. It develops through the interaction between the individual and social structures, influenced by ethical, spiritual, cultural and moral factors. Its various dimensions involve the anatomy, physiology and biochemistry of the sexual response system; identity, orientation, roles and personality; and thoughts, emotions and relationships. It begins before birth and lasts a lifetime, full development of which is essential for individual, interpersonal and societal well-being.6 Therefore, addressing sexuality requires a harmonious interplay between the several institutions concerned, including the criminal justice system. The 5 6

See also the Sexual Offences Act 2003 Chapter 42 part I sections 5 to 29 See Costa and Wood, (2005) on sexuality and social Change: making the connection: Strategies for action and investment.

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United Kingdom’s Sexual Offences Act 2003 is more accommodative in this regard. It recognises the fact that even using any part of the body in a 'sexual' manner constitutes a sexual act. Hence, it does not limit sex to vaginal penetration only. It also acknowledges female potentiality to sexually offend.

Comparatively therefore, the law in Uganda is more flawed. While I appreciate the fact that these are two different countries in different continents with different levels of development and socio-cultural arrangements, it is not good enough an excuse for allowing loopholes in the law and jeopardising justice. Moreover, Uganda's legal structures are duplicates of those of the United Kingdom due to its colonial background. It would rather be good if differences arose where the social and cultural fabric don't allow smooth duplication. But since sexuality has become increasingly complex worldwide, such differentiations need to be made when helpful and necessary.

Not to lose track, we need to precisely and comprehensively define an adolescent sex offender if we are to be understood and justified to be protecting the victim and rehabilitating the offender using the criminal justice system. In-as-much-as I agree that such a definition may be hard to come by, one that covers most or all aspects of the offender and victim is plausible. Mathews (1997:1) provides one and defines an adolescent sex offender as “any male or female of a 'legally specified age bracket' 7 who performs any sexual act with any person against the latter's will and consent”. In view of this definition, defilement as a legal term has some loopholes regarding adolescent sexuality. Firstly, it assumes non-consensual sex, yet many adolescents have consented to having sex and many are happily married. Secondly, it assumes that a female cannot defile 7

It is also unfortunate that legally specified age brackets and their definitions also present artificial barriers in many social contexts and complicate the sexuality of adolescents themselves and may be detrimental (see Levine, 2003).

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(spoil) a male in a sexual manner yet older females may indeed spoil (sexually victimize) younger males (Bolton et al, 1989). Thirdly, the socio-economic and cultural contexts within which adolescents are raised have an impact on their sexual will to engage in sexual intercourse. These are not fully considered and inculcated in the legal definition of defilement. Further, while the theoretical frameworks within which sexual offences are analysed have a lot to offer in explaining defilement, they leave out issues of adolescence consensual sex and the plight of status offenders, especially males. The extent to which the criminality of 'status offenders' can be located in existing theories of sexual offending in the Ugandan context may be minimal. An exploration of some of the theories in the next section will shed light on such a conjecture. 1.3.

Theories of sexual offending

A number of theories have been advanced in attempting to explain sexual offending and its etiology. These include; the integrated theory of the etiology of sexual offending (Marshall & Barbaree, 1990), the precondition theory of child sexual abuse (Finkelhor, 1984), the Child molesters' implicit theories (Ward & Keenan, 1999) among others. It may be observed that these theories have not covered the aspect of status offenders as portrayed in the sexual offence of defilement. They are only able to explain cases where the offenders are adults such as child molesters;8 and/or where the sexual act is nonconsensual, but not consensual sex between adolescents themselves. Below is a brief review of two of the theories to elucidate the fact that even theorising has covered but some of the elements of defilement especially in the Ugandan context.

1.3.1. The integrated theory of the etiology of sexual offending This is one of the theories advanced in recent years to explain the etiology of sexual offences. It was advanced by Marshall and Barbaree, (1990). According to this theory, 8

See for example Ward & Keenan (1999), who argue that maladaptive implicit theories concerning the nature of victims and the world do generate cognitive distortions in child molesters to view children as sexual objects.

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acquisition of attitudes and behaviours during childhood, as well as biological hormonal dispositions set the stage for the developing male to respond to sudden onset of strong desires characteristic of pubescence. These are influenced by childhood experiences, the social cultural contexts, and transitory situational factors.

In this theory, there is an implicit suggestion that it is only the males who sexually offend and/or abuse. This is because males are the ones on whom all the explanations of what causes sexual offending behaviour are based. This may not necessarily be the case for adolescents. Females have been found to sexually abuse males and this places male adolescents at risk of being sexually victimized as well.9 In-as-much as we need to recognise the differences in biological, socio-cultural and general differences in sexuality, issues of sexual offences need objective approaches, especially in regard to those involving adolescents themselves. Further-more, consensual sex among adolescents has not been accounted for by this theory, yet it is, as already noted, a criminal offence. Finally, this theory stresses the issue of aggression and underscores aggressive sexual offences. Although many sexual offences have the aggressive component, those that don't involve aggression also needed causal explanations. For example, many defilement cases in Uganda are not aggressive, especially those involving consenting adolescents. Similarly, other sexual offences such as voyeurism and those related to pornography don't involve direct physical aggression but are sexual offences.

1.3.2. The preconditions theory of child sexual abuse The preconditions theory was developed by Finkelhor (1984); and was an effort to bridge the gap between psychological and sociological interpretations of sexual abuse. The theory tries to link causal factors for sexual abuse by a hierarchical model. This model includes 9

''Male children are at clear risk from sexual victimisation, misuse and abuse of developing sexuality. Gender differences often assumed to protect against this risk do not... We tend to be more protective of female than male children''(Bolton et al, 1989:39)

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individual factors related to the victim, the abuser, the family and the socio-cultural factors.

The theory generally states that in order for a person to sexually offend, there are certain preconditions that must be met first. These analytically include the fact that: i) the offender must have a motivation - at least an emotional link or at least a kind of connection in communication or a level of understanding with the victim; ii) the offender must be sexually aroused to the victim (the child); iii) the offender must have poor interpersonal and/or social skills and cannot make good relationships with genuine sex mates and lovers; and iv) the offender should fail to inhibit sexual and other socially unacceptable impulses and be unable to provide the rationality of actions so displayed.

The theory stresses the child as the victim and ignores the fact that the child may also be the offender especially in the case of adolescent sexual encounters. Furthermore, there are sexual offenders who may not necessarily have this supposedly communicative connection to the victim. Also, other adults have good sexual relationships with genuine lovers but have also defiled adolescents.

It is observable that there can be criticisms for each of the theories advanced to explain the cause of sexual offending especially in regard to status offenders. Similarly, status offenders cannot be well situated in most if not all these theories. Thus, the law may need to be provided with a more comprehensive theory upon which the criminalization of adolescent consensual sex can be justified in Uganda or elsewhere in the world. While these theories have flaws regarding the explanations of the criminalization of consensual sex between adolescents, they have some strong arguments that generally address sexuality and the cause of sexual offences among adults. For instance, Marshall 10

and Barbaree's (1990) integrated theory of the etiology of sexual offending acknowledges that sexual development is affected by a multiplicity of contexts. The preconditions theory also appreciates the value of developing interpersonal and/or social skills to help make good relationships with genuine sex mates and lovers. While I also agree that proper interplay of contexts within which child sexuality develops is essential, I disagree that criminal sanctions against healthy consensual sexual relationships between adolescents create a healthy context for their sexual development and subsequent reduction of sexual offenses. Levine (2003) plausibly argued that sex between adolescents is just part of normal human development and barriers in terms of laws will impinge the process and interrupt its smooth transitory nature. This is not to suggest that children should be left to play sex wherever and whenever they want it, but that criminal sanctions are an extreme, the justification of which is practically and theoretically hard. Therefore, the provision of proper contexts must be understood and done in light of what works well for developing or inhibiting desirable and undesirable behaviours respectively.

Contexts are an important aspect in the development of any social behavior. Chalmers et al (2006), while explaining their perspectives on how to promote young people's sexual and reproductive health identified five contexts within which adolescent sexuality develops. These included: political, socio-economic, community, interpersonal and programmatic contexts. These authors ably and plausibly underscored the importance of understanding the interplay between these contexts while studying and tackling issues of adolescent sexuality.10 Although their work was not in the criminal context, it has important elements that point to the criminalization of sex among adolescents. For instance the political and programmatic contexts in which the legal and/or penal codes are 10. ''...whilst acknowledging that young people have varying desires, attitudes, knowledge, skills and abilities, a dynamic contextual analysis explicitly recognises that there are, in all societies, forces that determine whether, how, when, with whom and where young people engage in sexual activity'' (Chalmers et al, 2006:8).

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developed need to be approached in light of other contexts such as communities, socioeconomic correlates and personal psychosocial domains of adolescent sexual development. Therefore, theorising and legislating about sexual offences among children, regardless of their nomenclatures and country or location, should be done with a proper interplay of such contexts.

Concerning status offenders, I posit that without a comprehensive consideration of these contextual complexities, the prevalence of sexual offences in general and defilement in particular shall remain problematic. Similarly, prevention of such offences shall continue to be complicated; especially among adolescents. It may not be surprising that the portrayal of the prevalence of defilement is obscured by considerations of adult-child sexual relationships at the expense of adolescent consensual sex.

1.4.

Prevalence of defilement

It is important to note here that there has never been an empirical study in Uganda to entirely address defilement and its prevalence. However, from some studies that have been carried out for different purposes and objectives, I deduce that defilement is prevalent if taken by its legal definition. For instance, a survey by Neema et al, (2006) revealed that sexual activity is fairly common and often sporadic among young people in Uganda. About thirty percent of female and male adolescents (below 18 years) have had sexual intercourse. Among younger adolescents, males are twice as likely to be sexually experienced as females, however as they get older this gap between the sexes closes. One in five young people reported having had sexual intercourse in the last 12 months. A higher proportion of female 15–18-year-olds had sex in the three months prior to the survey, compared with their male counterparts. Nine percent of the girls said that some of the men they had sex with were 10 years and above older than themselves. A good 12

majority have boyfriends with whom they have sex in their age bracket.

In the same vein, a study of the experiences of pregnant adolescents in Wakiso, one of the districts in Uganda by Atuyambe et al, (2005) indicates that defilement is not only prevalent but also goes on unabated. This study qualitatively sought opinions of pregnant adolescents, adolescent mothers (mostly below 18 years) as well as their care givers and opinion leaders of a relatively rural setting. The aim was to explore problems that pregnant adolescents face in order to design appropriate policies and interventions. From a criminological perspective, and in the face of the current law on defilement in Uganda, those who impregnated the girls covered by this study are criminal offenders regardless of whether there was consent. While the study provides much evidence, it is silent about the criminal aspects; neither does it portray such sexual activity as criminal. I draw your attention to the words from the field:

''We who have young men as husbands find it a problem. When you get pregnant he is not merciful, he cannot treat you like a normal person, even when you tell him that you are sick, he says ‘I left a person without any illness, how can this happen? Serve me food’. In other words he wants you to do everything for him: he has no compassion over your health condition. If he finds that you have not done any work, he abuses you and just quarrels…He keeps the wife there because she was chased away from home, she fears to go back to the parents and tell them about her problem. They will ask her “Are we the ones who sent you there?'' (ibid: 307). It can be seen from the above quotation that in addition to the implied cases of defilement, there is domestic violence and abuse. The law provides, as already indicated that a girl of under 18 years is unfit to consent to marriage and sex. The one who marries her and/or has sex with her (hence pregnancy) breaks the law and is liable for criminal prosecution, regardless of his age. Why haven't such husbands been prosecuted? Were the laws put in place for formality? It all turns to questioning 13

the basis and context within which such laws are developed and implemented. If they were reactionary, revisions and amendments are needed to address such evident loopholes or else be viewed as scrap.

Uganda may not be so unique in regard to young people's sexuality. Studies show that more than one-fourth of the adolescents under 18 years in other Sub-Saharan countries have already given birth (Population Reference Bureau, 2006). More than fifty percent of women in the age bracket of 20-24 who are now married did so before their seventeenth birthday (UN, 1989). In the United Kingdom, a study about planned teenage pregnancy by Cater and Coleman in 2006 provides evidence that adolescents are sexually involved. For instance, a young girl is quoted to have said:

'' ‘I was a bit – you know – I was – I’d been with his dad for about three years, I think, before I got pregnant. I was with him for ages, so I was quite young. I never used precautions, so I s’pose you could say he was planned and not planned really.’ (Female, aged16)” (page19). She was with him for ages, quite young and never used precautions during sexual intercourse; presumably on contraception. The difference here is that at least there is some level of responsibility by the offenders. This could be as a result of proper and better upbringing that makes adolescents not to fear sex but act responsibly in this regard. It has been observed that teenage sexual activity does not necessarily lead to sexually irresponsible behaviour.11 In this respect, it is also observed that some feel at least guilty of their irresponsible sexual and other actions; thereby not perceiving injustice when apprehended. One was quoted to have accepted such responsibility when he said:

11

See also Wilder and Watt (2002:510) who investigated the link between parental behaviour and adolescent sexual activity and behaviour.

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''‘I’ve always done what I wanted really. It’s my fault I ended up in trouble, and in there. And it’s my fault I’ve got a kid now. I’ve always done stuff I’m not supposed to – it’s just me. If I see it and I want it, I just decide I’m gonna have it, and that’s like – that’s like the story of my life– and I don’t know why. [Laughs] I don’t think about what could happen.’ (Male, aged 17)'' (page 49). Another basic difference is that whereas sex between adolescents is a capital offence for the male in Uganda, it is not a capital offence in the United Kingdom, consent notwithstanding. Of course, each country may set up laws, codes and policies to direct actions but grave loopholes and mere extensions of the same to apply to groups that are seemingly different and vulnerable inherently undermine the legal and criminal justice systems.

In the Ugandan context, the prevalence of those committing the offence (having sexual intercourse with girls below 18 years) does not reflect the severity of the said offence. It may agreeable that studies on the prevalence of any phenomenon inform and shape much of the strategies that are developed to address it. For instance, when a disease breaks out in any area and appears to be prevalent, strategies to combat it must be developed within that same context. This should be the same with criminal acts and offences like defilement. However, precise estimates of defilement are difficult to obtain especially in the context of status offenders because they will not report it as an offence. Even in the case of child abuse, it has been established that the percentages of sexual abuse disclosures by child victims during their childhood are low; and that this is partly because children may not easily reveal their sexual encounters even if they are non-consensual until such children are old or when triggered in some way (Robins, 2000). If non-consensual sex cannot be reported, how then can consensual sex be reported? This is why it can be seen that most of the empirically compiled relevant literature suggests defilement by implication, while others have concentrated on child sexual abuse only. Suggestions and criticisms about 15

adult offenders and the role of the criminal and legal justice systems have been made in such literature; but the aspect of status offenders has been ignored. The rate of defilement as a crime would be very high if the aspect of status offenders was considered in its original legal definition and its practical implementation effected in Uganda. Even the media, NGO and other agencies' reports don’t stress status offenders like they do to child sexual abuse.

It is in this respect that I regurgitate the view that it might have not been necessary to criminalise consensual sex between adolescents the way it is in Uganda. Otherwise, the state and the criminal justice system should be seen to pry into adolescents' sexuality. Less than this, sections in the penal code are indeed rendered unnecessary. Yet prying on adolescents cannot be taken to be a healthy approach to foster responsible sexual behaviour. It is a form of injustice and makes sex a feared act. It may instead create a context in which young people may develop poor interpersonal and social skills and cannot make good relationships with genuine sex mates and lovers (Finkelhor, 1984). In essence sex offenders might are bred than reduced in the long-run.

In light of the criminalised nature of what many don't report as offences, the defilement criterion and definition in Uganda is susceptible to many practical challenges. It may be argued here that legal approach to defilement was not well founded since it cannot be strictly followed or justified. Categorically, defilement rates in Uganda are higher than documented and/or reported, if taken by its legal definition. That is, consensual adolescent sexual encounters are very evident and many do not consider them as sexual offences. The legislation in this regard seems to be off target or simply unnecessary. It is a stretch of what was intended to protect youths from adult sexual exploitation. The youths may have become victims of this very protection; with detrimental effects to them (Levine, 2003) 16

and the legal and justice system itself. Conversely it is probable that the conception and development of this legislation was reactionary and lacks the social and community support. Many sexual encounters are consensual and their prosecution is complicated by the fact that victims are willing to go prison with convicted offenders if it meant so. The point here is that the criminalization of status offenders is unjustified in the definition of defilement and other similar offences regardless of their nomenclature. As it stands now, unreported status offender cases appear not to constitute part of the prevalence of this offence in empirical studies.

From my experience in Uganda, defilement cases (involving status offenders) become evident and seem to be considered crimes only when maliciously reported or when they drop in the hands of the wide-mouthed media in some way.

1.4.1. The role of the media and NGOs on prevalence of defilement The mouthpiece of several social ills in our communities has been the media. Defilement and other sexual offences have their share in being portrayed in the media.

There are many genuine cases where adults are supposedly apprehended for defilement and are reported in the media. For instance, Abdul Kyeyune, a teacher of Bright Academy Primary School in Lukaya-Masaka was charged with defiling a 16-year-old girl who was his pupil (New Vision, 30 March 2007). The police in Luwero had arrested Sembatya Kityo, a traditional healer, over the defilement of a 17-year-old girl who had been taken to his shrine for treatment by her parents (New Vision, 20 Feb. 2007). Nevertheless, other genuine cases are not dealt with due to intricacies in the socio-economic conditions, the law and general structural and technical constraints such as lack of personnel. For instance, it was reported that defilement cases in Moyo district had increased (New 17

Vision, 25 March 2007). The criminals in most cases were not punished because of the increased poverty among the victims’ parents. On 22nd of the same month, the woman MP of Kalangala is reported to have told parliament that girls of as young as 10 years were being sold to Kalangala for commercial sex. The list is indeed endless but the issue here is that the media is doing much more in portraying the prevalence of defilement.

In spite of this effort of the media, it is also lacking on issues of status offenders. That is, their criminalization is seemingly not sensed; and this supports the view that it might have been unnecessary. Where it is hinted on, it is complicated by issues of consent, parental and social cultural factors. For example, it was reported that a defilement case was being reported at the Hoima Police Station every 36 hours, making it the single most common crime committed in the area. It was also noted that the majority of the cases of defilement are not reported to the Police because parents and guardians unlawfully settle them in the villages since girls are a source of wealth (New Vision, 23 March 2007). Many of the defiled girls end up getting married and dowry paid to the parents. The criminal chiefs have always blamed parents for failing to report the cases to Court, and hindering the Police's efforts to curb the crime. The mothers of the defiled girls do encourage them to abort especially if they have not liked the boy responsible for the pregnancy (the offender). Such reports raise questions about the applicability of the said law. It is seen to be contradicting what society views as valuable and beneficial. If people settle their differences especially where the adolescents have consented to marry, this may not be considered unlawful in the local people's perspective. This could partly explain defilement's prevalence. It is not prudent to support the mentality of condoning adults who seduce youths into marriage; but in cases where the youths themselves have consented to having sex and decided to responsibly marry, especially as supported by their parents, the law appears to be at a loss. It is also important to note that reporting of such cases is 18

mainly engineered by financial benefits, in which case the offending side may be unwilling to pay the victim side (Magee, 2006). Where there is agreement, such cases will never be mentioned, even in the media.

In the United Kingdom, the media also reports on sexual offences. For instance, the Guardian (2005) once reported that a married primary schoolteacher was jailed for 15 months after admitting having sex with an underage teenage boy. This shows that the media helps in indicating how adolescents are sexually involved in different ways and in different countries; criminalization, policing, trends and statistical quantification of which may not be easy in any country.

1.4.2. Official statistics and general trends According to official Uganda Police statistics, crimes committed in Kampala have been increasing. Between 2002 and 2003, defilement cases rose from 649 to 999.12 The Crime Statistics Report 1997-2001 placed defilement in position six out of the 40 most common offences. In the United Kingdom, Grubin (1998:3) notes that in terms of official statistics from England and Wales, indecent assault of females under 16 is by far the most common sexual offence involving children and that in 1995 this offence resulted in 2,116 cautions or convictions, representing about fifty percent of all sexual offences recorded against children. The next most common offences are unlawful sexual intercourse with a girl under 16, indecent assault on a male under 16, gross indecency with a girl under 14, unlawful sexual intercourse with a girl under 13, rape of a girl under 16, and gross indecency with a boy under 14. The numbers of cautions or convictions for each of these offences are all listed in tables. Over all, the seven main offences referred to in the records were responsible for 3,648 (92%) of the 3,957 officially recorded cautions or convictions

12

See for example Baker, (2005:22) on Multi-choice policing in Uganda

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for sexual offences against children in 1995. Although there would be changes in figures by now, these give insights into how official statistics on sexual offences involving children also implicitly omit status offenders. This further strengthens the argument that consensual sex between adolescents is not meant to be an offence.

It is vividly shown that sexual offences involving adolescents are common not only in Uganda but also in United Kingdom. However, the issue of sex between adolescents themselves remains complex and the difficulty of determining and proving its criminality worldwide cannot be underestimated. According to Griffiths (2006:21), seventy-four percent of all adolescents under 16 years in the United kingdom have kissed a member of the opposite sex; nearly half, or three million youngsters, have engaged in heavy petting, 2.5 million (forty percent of under 16s) have had full sex, including seventy-five percent of all 19 year-olds. Stammers (2000:1520) notes that recent trends in adolescent sexual health in the United Kingdom are cause for concern, and indicates that in England alone, almost 90000 teenagers became pregnant in 1997. Slightly fewer than 7700 of these girls were less than 16 years old. In the US some are opting for oral sex as a form of abstinence and in fear of HIV/AIDS infections.13

Similarly, Gates and Sonenstein, (2000:295), in a US national survey of genital sexual activities of adolescents found out that, fifty-five percent of males aged 14-19 had engaged in vaginal intercourse. Fifty-three percent had been masturbated by a female. Forty-nine percent reported that they had received oral sex and thirty-nine reported that they had given oral sex while eleven percent said that they had engaged in anal sex. More than three-quarters of those who had had vaginal intercourse had experienced masturbation or oral sex with a female. In Africa, a major regional study conducted by the

13

See also Remez (2000) on oral Sex among adolescents: Whether it is sex or it is abstinence!

20

African Population and Health Research Centre (APHRC) and the Guttmacher Institute (US) in 2004 revealed that nearly fifty percent of young people (15-19 years) in Uganda, forty percent in Burkina Faso, twenty-eight percent in Malawi, and twenty-two percent in Ghana, are sexually active and have had sexual intercourse (Neema, et al, 2006). Although the reliability of some of these study findings may need replication, they give insights into the prevalence of sexual action among adolescents, criminalization of which may be complex, if not difficult.

Whereas I acknowledge the complexity and difficulty of legislation and policy formulation in the wake of all these, I don’t agree that the criminalisation of consensual adolescent sex can be the best solution. Insofar as it can be ascertained, defilement in general and the plight of status offenders present some legal dilemmas to the criminal and judicial systems, their prevalence not withstanding. In the next chapter, an exploration of some of these dilemmas is made.

CHAPTER TWO 2.0

LEGAL DILEMMAS IN COMBATING DEFILEMENT OFFENCES

2.1.

Introduction

It is worth noting that the stringent legal measures that are put in place to check some social behaviour may fail due to the complexity of such behaviour itself. In Uganda, before the amendment of the penal code in 1999, the penalty for defilement was life imprisonment. After the amendment in this year, the penal code was amended several 21

times such as in 2003, which together with the other amendments from 1999 saw the increase in the penalty from life imprisonment to the maximum penalty of death. In reality however, these penalties are rare; not because people don't commit such offences but because the cases are legally complicated. In this section, I consider and explore legal dilemmas especially in regard to age of consent, age and sex discrimination and issues of corroboration of evidence.

2.2.

Consent

Consent is ideally a voluntary, sober, imaginative, enthusiastic, creative, wanted, informed, mutual, honest, and verbal agreement. Consent is a process, which must be asked for every step of the way; if you want to move to the next level of sexual intimacy, just ask.14 Although these are the ideals, in many societies and cultures, they are never all the case. It is arguable also that in real life, these issues are often more complicated. 15 In Uganda, there is a popular saying: “a woman never says yes to the request for sex even when she wants it. Her ‘no’ continues until she is entered, but responds with pleasure and thanks” him for the work well done after intercourse. Women also have a popular perception that a quick yes may indicate easy going (interpreted as promiscuous). Similarly, the cultural upbringing nurtures women to be shy in sexual encounters. For instance, Tamale, (2005) quoted one of the persons responsible for sexual grooming of girls in one of the tribes (Ssenga) to have said that most of them are shy when it comes to fore play (kissing and oral sex). Although Peterson and Muehlenhard, (2007) argued that wanting may influence individuals’ decisions about whether to consent, and that wanting and consenting need not correspond, these are indeed hard to tease out especially in socially constructed meanings of masculinity and femininity. For instance in 14

Yisrael, D.S. (2005) advices that never assume, ask before you proceed. A good lover is a good listener. A bad listener is at best a bad lover and at worst a rapist. 15 See for instance Peterson and Muehlenhard, (2007:72), who, while observing that many people, including the public and researchers, treat sex as either wanted or unwanted, with wanted sex being consensual and unwanted sex being non-consensual also agrees that real life is complicated

22

circumstances of the above quoted saying and perception, a man who listens to the ‘no’ is deemed weak in bed it is said. This could imply that there must be some element of force in sexual relationships and the man must show that he is capable. I am not contextually supporting rapists but just highlighting the intricacies in sexuality and offending in contexts in which we can successfully criminalize and police sexual offences. It should be realised to the contrary that adolescents may have the above ideals of consent fulfilled but are considered offenders because of the legal definitions of ages of consent and this is of more concern.

According to Tan, (1999), the age of consent refers to the age at which a person’s consent to have sex is recognised as valid in the eyes of the law. It is observed that men and women who engage in sexual activity with young men or women below this age are therefore guilty of a criminal offence. This is true even if it was the young person who wanted to have sex and ‘fully consented’ to it. The agreement of the person below the age of consent is simply invalid in the eyes of the law. Yet in many countries this offence (defilement in Uganda and ‘statutory rape’ in the USA) is one that is very severely punished with sentences of up to death and/or life imprisonment. This is done in the name of protection of the vulnerable group, the children. However, the criterion for vulnerability among consenting adolescents is another important aspect of controversy. For instance, if a boy of 14 has sexual intercourse with a girl of 17 and we take the age as the measure, then it will be the boy who is vulnerable. But in Uganda, this is not the case; the girl remains vulnerable even when she entices the boy into sex. As much as I agree with arguments from the feminist perspective; that women are particularly vulnerable, I do not rule out the psychosocial and emotional component of sexuality from them. They will want to have sex since it is more of a human instinct especially when in love. We should not forget the nature-nurture relationships in our policies regarding development of 23

humans.16 In addition, the criterion for defilement in Uganda seems to have over stressed the vulnerability of adolescents at the expense of their freedom to sexually relate and nurture their loving relationships. In this regard, ages of consent are portrayed as artificial limits on the rights of maturing adolescents to individually choose and nurture their love partnerships.

Whereas sexual violence, coercion and exploitation of vulnerable children should be criminalised and punished severely, consensual, well nurtured and loving sexual relationships between maturing adolescents may not need to be hampered in the name of protection. It's been argued that society may not necessarily reap better results by protecting adolescents in this way.17 Others may want to argue that the criminalisation of sex between adolescents may inhibit antisocial sexual behaviour, but consensual sex between young people is not necessarily antisocial behaviour (Wilder and Watt, 2002). Maturing adolescents need to relate responsibly as their ages advance to allow them partner up smoothly. Therefore, unless these ages of consent are well defined as well as discrimination between sexes streamlined, legal dilemmas abound.

Poignantly, the Uganda Penal Code sets the age of consent at 18 years but does not discriminate between ages liable for criminal prosecution for the offenders. The Sexual Offences Act 2003 of the United Kingdom is considerate in regard to age of consent (16 years). Moreover, both males and females are well covered therein. Even then, laws that use adult yardsticks to handle consensual adolescent sexual relationships may be polemical and intricate to stakeholders; especially in view of sexes and ages of consent.

16

See for example Lastrucci (1942:215) once noted that the so-called nature-nurture problem undoubtedly is far from being settled, and perhaps will never be entirely a closed issue. 17 See also Levine (2003) who argues that trying to protect young people from sex can actually exacerbate or even create the much-feared sexual danger.

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2.3.

Age and sex discrimination

The Penal Code section states broadly that any person who unlawfully has sexual intercourse with a girl under the age of eighteen years commits an offence and is liable to suffer death. The phrase 'any person' alone implies that even boys young than the victim girl are liable to suffer death. This is of course regardless of whether the girl consented and liked the sexual encounter. In this same context, Zimring (2004) questioned and wondered whether a child or young adolescent who commits a single act of sexual aggression against another child should be treated the same way as a 30-year-old man who assaults an 8-year-old girl. He calls this a travesty of justice - a policy that ignores the developmental stage of young sex offenders in determining their legal fate. Although he did not argue this in light of status offenders, the question is important because it brings to light some of the legal injustices that I am trying to highlight in this dissertation.

In the same vein, the precocity of girls' to boys' growth and development need not be downplayed. Parent et al, (2003:668) observed that during the past decade, possible advancement in timing of puberty has been reported. Early pubertal development and an increased incidence of sexual precocity have been noticed in children, primarily girls, migrating for foreign adoption in several Western European countries. These observations raise the issues of differences and secular trends in timing of puberty in relation to ethnic, geographical, and socio-economic background. It is in such cases that criminalising consensual sex becomes technically and legally difficult.

It is recognised that in 1990, the law defined the age of the minor victim of defilement as 13 in Uganda. In 1993, the National Resistance council amended the same law to cover all children under 18 as minors, following frequent reports of defilement. However, defilement remained a serious problem in subsequent years (UHRC, 1997). Yet, only a 25

small fraction of the cases are reported as noted in an earlier section. It has also been observed that when accusations are launched in courts, convictions are not common due to the complexity of the very cases themselves. While defilement carries a maximum penalty of death sentence, such a punishment has never been meted out to any that offenders. This has been largely due to this crime's multifaceted contextual stance which actually complicates the legal approach in practical terms. Issues to do with evidence of penetration, witnessing by minors (the defiled) and corroborating such evidence to prove them beyond reasonable doubt are indeed complex.

2.4.

Evidence and corroboration

It has appeared in some cases that absence of medical evidence on penetration is not necessarily fatal to the prosecution in a defilement case. In the case of BASSITA HUSSEIN vs Uganda SCCA 35/1995, it was held that though desirable, it’s not a hard and first rule that the victim's evidence and the medical evidence must always be adduced in every case of defilement to prove sexual intercourse or penetration. Whatever evidence the prosecution may wish to adduce to prove its case, such evidence must be such that it's sufficient to prove the case beyond reasonable doubt. Further, it has appeared that absence of the victim's evidence is not necessarily fatal to the prosecution case in sexual offences. In the case of RUGARAWANA vs Uganda SCCA 39/1995, it was held that in a defilement case, an accused can be convicted of the crime on the basis of the testimony by the witnesses other than the victim for example medical evidence and eye witnesses. However, it is important to note also that in sexual offences, where the victim is a child of tender years, evidential rules make the prosecution case doubly difficult. There is need to corroborate the evidence of a child of tender years when the evidence is given on oath. In UGANDA vs BATURINE RICHARD HCC 589/1996, it was held that the evidence of a child of tender age requires corroboration and where a child of tender age is the 26

complainant in a sexual offence, her evidence doubly requires corroboration. Where the accused denies the charge, the prosecution must discharge its legal duty of proving each and every essential ingredient of defilement against the accused. In KOLIL vs R [1959] EA 92, a child of tender years was held to be a child under the apparent age of 14. Corroboration in law means independent evidence which supports the testimony of the complainant. It is confirmation from some other source that the complainant is telling the truth in some part of her story and goes to show that the accused committed the offence. In KATUMBA JAMES vs Uganda SCCA 45/1999, corroboration was defined as additional independent evidence which connects the accused with the crime confirming not only the evidence that the crime has been committed but also that the accused has committed it. Under common law, the evidence of a complainant in a sexual offence must be corroborated with either direct or indirect circumstantial evidence. Considering all these, prosecuting status offenders becomes additionally hard. Lovers will do anything to make prosecution proceedings fail. Will girls be forced to take medical examinations? How about her rights? All these issues complicate matters for judges in courts. Moreover, every judge must warn himself and the assessors against the danger of convicting an accused person on the uncorroborated evidence in a sexual offence. In the case of KIWANUKA vs UGANDA, criminal appeal 41/1995, the Supreme Court held that it is settled in law that in sexual offences, though corroboration of the prosecution evidence is not essential in law, in practice it is always looked for and it is the established practice to warn the assessors against the danger of acting upon uncorroborated evidence.

Furthermore, the justification for the requirement of corroboration in cases involving sexual offences was expressed by Lord Justice Salmon in R vs HENRY AND MANNING, when he guided that the judge has to use clear and simple language that will without any doubt convey to the jury that in cases of sexual offences, it is really dangerous 27

to convict on the evidence of the woman or girl alone. This is dangerous because human experience has shown that in these cases, girls or women do sometimes tell an entirely false story. It’s very easy to fabricate but extremely difficult to refute.18 Note that the rationale for corroboration is that given the nature of the offence, the allegations may be difficult to verify. Yet this is in cases where there was no consent. In cases where (for example adolescents) consent to have sex, it is entirely difficult for such a legal approach to work, because, the girl will just complicate everything by lying that she has never had sex with the boy. Conversely, I witnessed a case where a girl, after being caught with her boyfriend (while having sex) by police, helped by her parents insisted that she will go to prison with him because they were in love. In this context, the legal approach in Uganda is indeed problematic.

The United Kingdom's equivalent of defilement law in which the victim and offender are adolescents is in section 13 of Part I of the Sexual Offences act 2003. While there are explicit descriptions of what sexual acts should happen for the offender to be convicted, defining a sexual act is quite complex. The Act does not include a list of actions which are considered sexual. Although ways of determining them are set out, they all are at the discretion of the jury.19

In regard to consenting adolescents, the jury may not ascertain

such acts with ease. Even reaching court alone may be problematic because there is no offender in reality, neither is there a victim/complainant.

From adolescent consensual sex point of view and the cases seen above, it is plausible to observe that the legal dilemmas are in part, a result of the juxtaposition of the law with a behaviour that is seemingly normal, healthy and liked by involved parties. Ng and Kamal, 18 19

See for example, Henry, R. vs. Manning [1969] 53 Cr. App. R 150 at 153 There are basically two categories of acts which are “sexual” for the purposes of this law. The magistrate or jury have to decide whether a reasonable person would consider either that the particular act is, by its nature, sexual; or whether it could be sexual, AND either because of the particular circumstances and / or the offender’s intention, it is sexual (Rights of Women, 2006)

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(2006:484) noted that female participants in their study described sex as “being beautiful”, something “to be fulfilled, like hunger or thirst”, as “an act of love”, “a way for you and your lover to get closer”, and “makes the relationship better”. Consensual healthy sex is therefore understood as a behavioural act that has no harm to third parties or society as a whole. However, fear of the actions of sexual abusers and paedophiles on young people may impel governments to enact laws with a hope that they will help. Nevertheless, the proper understanding of contexts within which adolescent sexual behaviour develops, as well as the factors contributing to the prevalence of adolescent sexual involvement may offer insights into better strategies and programmes than criminalisation, whose practical and theoretical justification is seemingly hard.

CHAPTER THREE 3.0.

WHY ADOLESCENT ENGAGE IN SEX AND DEFILEMENT

3.1.

Introduction

Despite very stringent penalties over the years in Uganda, defilement has been, and is on the increase. Almost every end of year, the Uganda Human Rights Commission (UHRC), an independent constitutional body established under Article 51[1] of the 1995 constitution of Uganda (Uganda Human Rights Commission Act, no.4 of 1997), releases human rights reports on how human rights have been observed by persons, government and other institutions. These have never missed issues on defilement each year. Moreover, 29

these reports seem not to consider consensual adolescent sex as an abuse and rightly so because nobody is offended in that regard. Otherwise, the prevalence of defilement would be deplorable because many adolescents are now married couples in Uganda. In the United Kingdom, the National Attitudes and Sexual Survey (2000) revealed that thirty percent of males and twenty-six percent of females had first sexual intercourse before age sixteen. Indeed several studies (including; Todd et al, 1999; Kane and Wellings, 1999; Stammers, 2001; Coleman, 2002 among others) indicate that teenagers are sexually involved. The question of why adolescents engage in sex may be answered but with difficulty, neither can it be provided with a universal answer. Conversely, almost all social phenomena and their etiology are complex but those relating to this offence; and in regard to adolescents is more complex and interwoven. Thus, adolescents' objectives for engaging in sexual activities and the circumstances under which they do so vary from situation to situation. Although Stammers (1998:1) agrees that a combination of biological and social factors exerts enormous pressure on adolescents to start having sex early, he does not draw implications for the criminalisation of such sexuality. In this chapter, I explore some causes of adolescent sexual involvement and draw implications for defilement offence. 3.2.

Cultural practices in form of initiation ceremonies and rituals

In Uganda, there are many ethnic groups and tribes, holding different permeating cultural beliefs and ceremonies that have implications for adolescent sexuality and defilement. What young people go through in each of the tribes may provide some explanations for early or late involvement in sex. Some of them are so complex and socially ingrained that the law cannot easily and comprehensively cover them. Yet in the era of technology, formal education and globalization, people of different tribes continuously interact and so are their children. Cultural practices are thus permeating and being copied in several ways. I’ll describe some of them for explanatory purposes. 30

3.2.1. Clitoral elongation and womanhood The Baganda, the biggest tribe in Uganda has a belief and a practice of elongation of the clitoris (clitoral pulling), locally termed as the visitation of the bush because it was traditionally done in the bushes. It is an initiation into adulthood, womanhood and eventually motherhood but it is achieved by pulling the labia and rubbing various herbs and wild fruits into them (Neema, 1994). For this tribe, it is a precondition for marriage and is carried out before the onset of menstruation. If in any case it is known that a prospective bride has not pulled, it has to be done first lest her aunts (fathers' sisters), whose duty is to have it done get ashamed and despised.

20

Through the acculturation21

process or assimilation (Castles, 2003), many girls of other tribes have been influenced into this practice especially in boarding schools. However, the sensations that are caused by this process ignite or stimulate sexual feelings and develop sexual curiosity. These, coupled with sexual energies that accompany adolescence and pubescence, may insinuate adolescents into early sexual involvement. According to Tamale (2005), the practice of elongating the labia appeared to be serving important functions and among them was that the extended labia enhance the erotic experience of both the male and the female. She observed that when touched and manipulated during foreplay or mutual masturbation, they may be the source of immense pleasure to the couple. Several men interviewed said that they enjoyed looking at and fondling the stretched labia of a woman and women enjoyed the sensation. In this context, I do observe that the touching and rubbing of the herbs on the clitoris of a young girl may sexually arouse her. It makes her to imagine the good feelings and pleasure she would derive if she was actually with a male she loves. It may 20 . Arrangements will be hurriedly made for effecting the elongation if it is discovered that a prospective bride has not been prepared in this way (Adeokun et al, 1995:19). Note also that a [Muganda] woman who did not elongate the labia minora is traditionally despised and regarded as having a “pit” (kiwowongole, kifufunkuli, funkuli muwompogoma). If a bride was found not to have elongated her labia minora, she would be returned to her parents with disgrace (Sengendo and Sekatawa, 1999). 21 . I define acculturation as the process of changing one's culturally accepted act/behaviour due to continuous contact with another person(s) from whom the act is copied, although Castles, (2003:23) calls it assimilation theory

31

then follow that given any opportunity of intimacy with a boy; sex may be the eventual result. Yet, it will be a likeable experience and consent is implied in this case. The criminalisation of such pleasurable moments especially if attained with fellow age mates in responsible relationships and encounters may be unjustified, if not very difficult for the criminal and justice systems.

3.2.2. Circumcision rituals, ceremonies and manhood Among the Bagisu, the circumcision of adolescent boys and the ceremonies that are performed to initiate them into manhood also provide avenues for early sexual involvement. Although not in the criminal perspective, Heald, (1982) gives a clear picture of important aspects and features of the circumcision ritual and its ceremonies. The circumcision ritual is divided into some kind of phases. The first phase is when boys try to practice and gather the strength to face the knife. They dance in small groups. The second is when they ritually get committed by threshing the millet that will be used to brew the local beer to be served on the operation day. The third and most vigorously engaging is when they brew the beer. After threshing the millet, relatively bigger groups of relatives and non relatives, usually youths (boys and girls) dance with the candidates and visit distant relatives, covering sometimes over 50 miles on foot. When the beer is brewed and during the three days, large crowds of people dance and sleep at candidates parents' homes. It is important to note that it is during these dances that the opportunity to leave the protective hands of the parents and/or guardians over the adolescents arises. It is also believed that during this time, many are incited into sexual encounters.22 The dance, as witnessed by myself (as a member of the same tribe) is such that boys may dance while touching girls' buttocks in sexually arousing ways. The other important and key feature is the fact that this ritual confers immediate adult status on the initiated youths. They become 22

See for example Kataami and Akola, (2002), noting that during circumcision period (only even years) the major activity is dancing to traditional music and drinking alcohol, which incites the people to sex.

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adults, independent members of society and men (La Fontaine, 1967: 253), who are expected to have their own houses/huts and marry. Given the fact that, boys as young as 14 years get circumcised, this status would mean that they will defile. In addition, one of the ritualistic requirements is that the healed wound must be sexually tested on a woman who should never be met sexually again. It all points to the fact that these adolescents are meant to have sexual intercourse before marriage and/or while young. Criminalising such sexuality becomes very complicated and difficult. It is not surprising that many youths are married in Uganda and the legal system has done nothing about it.

In the United Kingdom, ritualistic acts may not exist in such forms. Although there existed cultural hindrances to aspects of sexuality such as myths that inhibited adult-child interaction in relation to sex education (Walker and Milton, 2006), the current open social lifestyles and technology seemed could help. However, technology is accompanied by side effects in form of indiscriminate media information, pornography and internet sexual acts. These seem to increase than reduce adolescent sexual activity. They also seem to complicate efforts of criminalizing, policing and prosecuting sex offenders worldwide. 3.3.

Media, pornography and the internet

3.3.1 Media The media have a powerful influence on human actions and have arguably had its share on human sexuality. Newspapers for instance have had a lot to offer for general public consumption, much of which is not limited to only adults. In Uganda there is a paper called Red pepper and its depiction of sex is so revealing that any curious adolescent would imagine what it can be if tried. In the pictorial section of this paper, people are pictured having sexual intercourse or at least depicted to be doing so. Such pictures have different messages to different people, but most words that follow them insinuate sex and

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are pornographic.23 They can arouse sexual feelings in any sexually active human being. Similarly, there are several TV and radio programmes that are actually sexually arousing, yet the audience is not always discriminated since doing so is hard in reality. Longo, (2004:58) noted that many young people explore varied information sources to address curiosity about human sexuality, curiosity about pornography, curiosity about sexual lifestyles, and so forth. Such activity does not always lead sexual behaviour problems but may arouse them to high heights of eroticism. In this same context, Stammers (1998) observed that never before have adolescents been exposed to such relentless media pressure to have sex as early as possible. Cinema, television, pop music, the internet, CDROMS, teen novels and magazines all combine to project sex as a status symbol and primary reason for living. Worsened by the fact that Uganda has no legal sanctions on pornography like in the United Kingdom or United States, criminalisation of adolescent consensual sex is difficult and seems not to be a solution. Note also that although some of the aspects cited above may be illegal in the United Kingdom and elsewhere; especially when involving young people, it is really hard to police a liberally volatile adolescent in the open modern environment and in the era of the internet and general computer technology. There is currently much concern in the developed countries over internet pornography in relation to child sexual criminality than newspapers and TV programmes, yet comprehensive strategies to discriminate what can be accessed by adolescents are also complicated.

3.3.2. Pornography and the internet Pornography is a word whose original Greek meaning has metamorphosed tremendously and has gone beyond just writing (graphein) about prostitutes (porne) to more constructs in today's sexuality. According to Flowers, (2001:114), it has widened to include the many 23

Pornography is ''any sexually explicit and/or titillating, arousing written, photographic, pictorial (including moving pictures) or live depiction of women or children for commercial exploitation ... or acts to the population-at-large that have an effects on certain elements of society (Flowers, 1987:48)

34

ways in which sexually explicit material can be provided and disseminated such as pornographic literature, movies, videos, live shows, photographs, and computer related pornography. But to keep adolescents out of all the above is not any easy task even at face value. A literate adolescent out of curiosity can have access to illegal adult webs in the absence of a parent or care taker. Imagine the amazement and further curiosity such webs can breed in the mind of an adolescent. Yet, in the current era of computers and internet technology, their knowledge is almost a must for finding the best fit in the ever expanding but yet narrowing globe. Policing adolescents on what to search for on the internet webs can be a difficult job.

According to Illman and Newcombe (2006), pornography is illegal when it is perceived to be obscene. This is different to being 'sexually explicit'. Whether a pornographic article is obscene is something that is decided by a jury. They do this by deciding if it is likely to 'deprave and corrupt'. So pornography that is not deemed to be 'obscene' is legal in the UK and it is not an offence to look at it on the Internet. It is not an offence to have pornography in your possession, but it is an offence to distribute or publish porn that may 'deprave or corrupt'. This might be interpreted as being in possession of illegal material and can be traced in case it is distributed. But Dixon, (2001:2) notes that issues of traceability and anonymity are extremely complex, since tools which can be used in identifying perpetrators can be used by adults with a sexual interest to identify potential victims. Also, issues of making, possession and storage in the computer era can be complicated to prove. For instance, in ATKINS v. DIRECTOR OF PUBLIC PROSECUTIONS, it was concluded that whilst "making" includes intentional copying, it does not include unintentional copying and that the offence of possession under s. 160 is not committed unless the defendant knows he has photographs in his possession.24 24

See also case No: CO/3417/99 CO/3002/99 in the High Court of Justice. Royal Courts of Justice strand, london, wc2a 2ll wednesday 8 march 2000

35

Similarly, children themselves may be perpetrators, their curiosity notwithstanding. Moreover, such exposure pressurise them to have sex even among themselves (Stammers, 1998), criminalisation of which remains unjustified if not difficult.

The European Committee on Crime problems (1993) indicated that pornographic material involving children is often used to induce children to consent to sexual relations with adults, as was apparent from a large number of cases of sexual abuse dealt with by the courts. However, the committee needed also to recognise the fact that children are themselves involved and measures to curtail these were also necessary. Also, in the event of children watching such adult pornography, something needs to be done in that direction to save the situation because they will also be induced into consensual sexual relationships even among themselves. The silence of the committee on issues of sex between adolescents is of concern here. To allow adult pictures to be used in pornography is as good as feeding the adolescents on the same food which you don't want them to produce themselves. Profitable in commercial terms as it is, would a total ban on pornography as a whole be necessitated? These are really dilemmas in criminal justice. While this committee recognises the fact that designing a coherent crime policy in this area requires drawing lines between children and young adults being used for artistic or legitimate commercial purposes and those used in an erotic context which does not necessarily imply production of pornography, it does not show how such lines can be drawn. Such lines may not be easy to draw since sex is a mind set. What constitutes art in some contexts and to some people may be erotic to others. The picturing described earlier on can arouse sexual feelings even when the intention was not to do so and was commercially artistic in its originality. Remember that we are talking about what makes young people want to engage in sex. Therefore, teasing out good pornography and bad pornography may not be easy for the law, yet it affects human attitudes and emotions. 36

3.4.

Attitudes and emotions

What we like or dislike makes us to do or not do it respectively. The impetus for engaging in sexual activity may be derived from such likes and dislikes. However, there is much more than just liking or disliking. In this case, we need to consider the emotional and pleasurable components of the sexual act. Ng and Kamal, (2006) in the study about adolescent sexuality and HIV risk, found out that reasons for adolescent engagement in sexual intercourse included sexual pleasure and expressing love among others. Although the reasons of engaging in sex and their attitudes towards sex changed with time, as they became more experienced, most did not regret having sex and losing their virginity. For instance, see one of the field interview quotations: ''Jeeze, first time, it wasn't enjoyable. I didn’t bleed and it didn’t really hurt. I suppose that time yeah it was a way to show you know? Love. Like I love you and you love me that kind of things and bla...bla...bla... so let’s do it kind of thing. That’s about it. Then after that it becomes less and less important. You know? You don’t take it as like make love kind of thing, it is just like having sex, intercourse. So after that it is just like that and you want to try new things, you want to be pleased even more.” (Female 5) (Page 484) Many other quotations from the field pointed to the effect of emotions. 25 In addition, feelings are dynamic and can change before, during and after any sexual encounter and differences do exist in regard to males and females.26 But they seem to naturally occur in humans and compel them to engage in sex even when the attitude is to the contrary. Meier, (2003) found out that there are substantial attitudinal effects on first sex for both 25

“Also, because if you pleasure your partner through sex right, then both of you feel better. It is like if you are sorry but you don’t like to say sorry right, then you can just show it by sexual act.” (Female 6)“For the fun of it, and basically... another vital factor, I would say.... to fulfil my manly desire.” (Male B) “I mean the reason why I have sex is because it is the emotional feeling. It is the emotional feeling and the interest, and somehow you know it’s OK.”(Male D) (Ng and Kamal, 2006:485) 26 See also Haseltonu and Buss (2001) who after considering reports of presex and postsex feelings, found that men with high numbers of sex partners, but not men with low numbers of partners, experienced a decrease in their partner's physical and sexual attractiveness following first-time sexual intercourse. In contrast, women, more than men, experienced increased feelings of love and commitment following first-time sex.

37

males and females. She observed that the attitudinal effects on first sex are stronger with regard to relational attitudes than personal attitudes and that there is substantial attitude adaptation after first sex, with the strongest adaptation happening with regard to relational attitudes for females. She argued that when deciding to have sex, females consider the costs and benefits to those with whom they are close (e.g., their romantic partner or their parents) and that having sex makes attitudes about sex more permissive. It may be agreeable that in some cases, guilty feelings may follow a consensual sexual encounter but the pleasurable feelings experienced during the intercourse may not be regrettable. For instance Donald et al (2003) indicated that the majority of young people reported that they felt happy or good following their most recent occasion of sex. Yet Donald and his colleagues also give no different explicit reasons for adolescent sexual involvement. This leaves it to emotion, if not pleasurable feelings.

While sex may involve emotional

components, the attitudes and reasons for indulging in it may be influenced by other circumstances. In the next section, I will consider the economic correlates of sexuality among adolescents.

3.5.

Socio-economic and health factors

The power of wealth, general attainment and statuses in society cannot be underestimated in pushing young people into sexual relationships, among themselves or with older people. In many developing countries, females have for long been groomed to be dependant on males. This is not to ignore the fact that there are cases where some wealthy females may substantially influence young males into sexual relationships due to the need to improve their economic statuses. The sexual relationships between old people and adolescents have been termed as sugar daddy or sugar mummy relationships in some of these countries. Studies on these relationships have stressed the influence of old people on young people and the likely benefit derived in the long run. For example Kuate-Defo (2004:17) noted 38

that in all these types of relationships, young people; especially girls expect to trade in their sexual services in exchange for goods and/or money including food, underwear, clothes, soap, cream, pocket money, rent payment, school fees and/or textbooks. I observe therefore that poverty does explain some of the adolescents' decisions to engage in sex with adults in the Ugandan context. In such circumstances criminalization and/or prosecution of such offences is seemingly difficult because victims view offenders as bread-winners and may defend them in courts of law.

On the other hand, there may be relationships between adolescents themselves with similar connotations. When financial potential is foreseen in any family lineage, the interested party may do anything to get hooked to it; either by encouraging sexual encounters with the intention of pregnancy to affirm their commitment or elicit sexual encounters so as to legally extort financial gains. This could partly tally with what Menon (1983:834) noted when he observed that for a multitude of reasons, females may accuse men of sexual assaults to extort money, to force marriage, to satisfy a childish desire for notoriety, or to attain personal revenge to obviate a sense of shame after consenting to illicit intercourse, especially when pregnancy results and delusion. While Menon points fingers at females, poverty in Uganda affects both female and male adolescents who may get sexually involved to avert such poverty and improve their economic statuses. In the United Kingdom, poverty may not be necessarily the cause, although education levels have an influence. For instance, (Singh et al, 2001) found out that early sexual activity has little association with income, but young women who have little education are more likely to initiate intercourse during adolescence than those who are better educated. It is in such complexities that the work of the legal and criminal justice system in any country turns out to be extremely difficult.

39

Regarding issues of health, there is currently a view that is gaining popularity in the Ugandan general public that defilement is increasing because of the belief that young girls are still HIV/AIDS free; and that many go for them with the intention of finding virgins as wives. In-as-much-as I would agree with such a view, Adeokun et al, (1995:20) found out and reported from key informants that most cases that are reported involve people who are not very knowledgeable about the virus. They are not in a position to make the intellectual connection between avoiding infection and having sex with minors. What is most disturbing is that some of these offenders are parents; with children in the same bracket as their victims. Even if polygamy is legal in the Ugandan context as of now, a man of over 50 years, with children of over 18 years; to go for a girl of 14 years as a wife is really paradoxical. These are the people, if proved to have no mental problems, genuinely disserve stringent penalties. On the contrary, we see a normal married teacher being sentenced for only 15 months (The Guardian, 2005) in UK. Parenting is indeed another aspect that may be blamed for irresponsible and illicit adolescent sexual activity in our societies. In this case, it may be arguable that poor parenting and problematic family structures are a cause for adolescent engagement in sex and hence defilement. 3.6.

Parental and familial factors

Parents and family members are the immediate environment within which all children are born. They form the microsystem that impacts on the children's development more intimately (Bronfennbrenner, 1979). The microsystem is the layer closest to the child and contains the structures with which the child has direct contact. The microsystem encompasses the relationships and interactions a child has with her immediate surroundings. Parents will therefore have a profound effect on the behavioural patterns of their children, sexual activity inclusive. Wilder and Watt, (2002) established that just as unsafe parental behaviour increases the chance that adolescents will drink, smoke, or use drugs, parents who engage in risky behaviours may encourage early sexual activity and 40

contraceptive non use by providing a model of low self-efficacy. Parents' risky behaviours have substantial and independent effects on their children's sexual behaviour. It is arguable that adolescents whose parents engage in risky behaviour are especially likely to be sexually active and that risk is reproduced across the generations, perhaps because parents often serve as role models for their children; willingly or unwillingly, consciously or unconsciously. It's been observed that exposure of children to risky behaviours has implications to their subsequent behavioural development.27 Conversely, consensual loving sexual involvements among parents are part of likely modelled behaviours yet they are out of these ''risk'' connotations. This is arguably because sexual activity may not necessarily be risk behaviour. It is agreed that teenage sexual activity does not necessarily lead to sexually irresponsible behaviour (ibid: 510). Therefore, sexual activity is partly a result of socialisation and consensual sex might be part of this socialisation. In this context, criminalisation of such seemingly socialized and normal behaviour may not only be polemical but also hard to practically defend. CHAPTER FOUR 4.0.

SUMMARY, RECOMMENDATIONS AND CONCLUSION

4.1.

Summary

To a large extent, I have argued that the legal approach to defilement in the Ugandan context is flawed; especially regarding adolescent consensual sex. It is however important to observe that this approach to defilement has both weaknesses and strengths. Its weaknesses stem from the treatment of adolescents as young versions of adults, discrimination against the male adolescent in terms of age and consent, as well as failure to have contextual harmony. It has been seen that the criminalisation of consensual sex between adolescents cannot be well located in the existing theories of sexual offending. As 27

Marshall and Barbaree (1990:263) noted that exposures to the experiences typical of a sex offender... make them relatively unable to develop intimacy and to feel empathy... leaves them inept, lacking in confidence, self-centred, hostile, aggressive, and negatively disposed to women. This makes adjustment from adolescence to adulthood hard.

41

a consequence, its practical and effective implementation has become complicated and difficult in legal terms; so much so that the prevalence of defilement as an offence has become confusing and hard to quantify in Uganda. The portrayal of consensual sex between adolescents as an offence remains in legal documents like the penal code. Otherwise, much literature portrays it as a healthy problem than a crime.

On the contrary, the strengths of defilement as a legal term relate to its ability to protect children from sexual abusers. Whereas there are mishaps especially in regard to consensual sex between adolescents, child sexual abusers and paedophiles cannot and should not be protected. Neither should adolescents who sexually abuse, assault or rape others be absolved from such criminal responsibility. Juvenile courts should be functional, their structural defects notwithstanding. Therefore, I have not only considered the view that defilement as a legal term is flawed, but also indicated avenues where its necessity and applicability is paramount. However, this necessity has practical complications due to the autopoeism of contexts within which sex is perceived and enjoyed in different societies and countries, all of which have various implications. 4.2

Implications and recommendations.

At this point, it is imperative to appreciate the fact that the criminal justice system and the policing of crimes of a sexual nature in society have implications for sexual health and general societal wellbeing. This is so much so that if not harmoniously approached the sexual health and development of children and young adults is in jeopardy. It is my humble submission that if we are to attain some level of such harmony, there is a need to consider seriously the kind of behaviours we criminalise. Following the issues discussed in this dissertation, implications can be drawn and recommendations made that may be helpful in some way.

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4.2.1 Research and theorising We have seen that there is no explicit theory that covers the issue of status offenders in its entirety and that in this regard, the law appears to be lacking such a background. This implies that criminology has not offered a theory upon which such an offence can be attested. This complicates its applicability in the real social world. Therefore, research and theorising in this area need to aim at providing explanations and justifications for the criminality of sex between consenting adolescents. It is not enough to say that young females cannot consent to sexual encounters as provided by the law. The truth is that they do consent and some like and enjoy the sexual experiences. Putting laws in place that don't have a basis raises issues of legitimacy and defiance (Tyler, 1990). Even mainstream theories of criminology may fail to explain why defilement is so prevalent despite its stringent punishments in Uganda and would indeed query the legitimacy of the penal code provisions thence. For instance, Von Hirsch et al (1999) thought, and in line with the theory of deterrence, that offenders must realise the changes in severity of punishments, believe that they cannot escape being caught and that the punishment above will definitely be applied to them and are willing after considering risks, to change the choices about offending to be deterred from offending. But this seems not to be the case with consensual sex among adolescents even when the punishment was raised to death penalty. In the first place, they are criminals just because the law suggests so in light of their ages. It thus turns back to the basis and justifications of the penal code sections thereat. If it was intended to protect children from sexual exploitation, then there should be a clearer distinction between what is criminal and what is not. Otherwise, if people don't view and even sociologically understand any behaviour as criminal, they might continue breaking the law regarding such behaviour. In essence all those who are now married and are below 18 years are criminals in the Ugandan context. This is not a small number though; and in practical terms many would have been hanged or in prisons for life (life imprisonment). 43

In addition, I think that a criminal offence needs to be proved to the effect that the aggrieved party actually feels offended. Whereas females in a consenting sexual relationship don't feel offended, the law criminalises it; and finds itself in practical and technical difficulties of proving the offender’s guilt. The argument that the state through the law needs to protect the vulnerable groups does not significantly fit as a justification for criminalising consensual sex. In this case, it may even be argued that the vulnerable have become the ones being victimized by the law, where they have to help in the prosecution efforts (Levine, 2003; Magee, 2006). How the criminalization of consensual sex among and between adolescents is justifiable remains an aspect of further research. Consequently, without proper empirical studies and provision of theoretical frameworks within which we can criminally defend the criminalization of consensual sex, the sexual autonomy, part of the human freedoms of young adults are unjustly curtailed.

4.2.2. Autonomy in Sexuality Sexual autonomy should be viewed to include both the right to engage in wanted sexual activity and the right to be free and protected from unwanted sexual aggression. It is only when both of these aspects are recognized that human sexual dignity can be considered fully respected and upheld (Graupner and Bullough, 2005). This implies that the rights and freedoms of young people are being compromised in the name of defilement. There needs to be a clearer distinction between children and adolescents in sexuality and crime. Treating adolescents as typical children may be unfair not only to them but also to society at large. This is because they must be nurtured and allowed to find and form marriage relationships with responsibility and autonomy. 44

While I agree that child sexual abuse should not be condoned in criminal law, sex between maturing adolescents seems healthy and need not be made fearful or criminalized, lest we spoil our future parents. Instead, we need to help them

build personal values for

expressing emotions in clear and respectful ways, shape peer norms that value expressing such emotions and acting in ways that respect themselves and others, and remaining abstinent whenever necessary and possible. There is need to increase their knowledge and help them develop skills that enable them to care for their bodies. In this way, future parents are developed than sent to prison or hanged. Longo, (2004:65) notes that, young people are naturally curious about sex and will seek out sexual stimuli. Parents, educators, professionals, and caregivers should not panic when they discover a child's natural curiosity and exploration. Instead they can use such times as 'teachable moments,' and then guide the young person to age appropriate materials. The only problem here is that many parents in Uganda are illiterate and the children appear to know more than them in the modern world. With the advent of computers and internet technology for example, adolescents can access a lot of material that their parents or caregivers don't know. Similarly, children are openly asking questions relating to sexuality and some parents have appeared to be embarrassed by such questions. There is therefore need to have parents adjusted to these new trends through adult and health programmes that are holistic in nature. This will help them know how to responsibly bring up their children in line with the modern trends than criminalizing their rather naturally and socially relevant behaviours and actions. In the event of doing so (criminalizing), there is need to consider all contexts lest the legal system becomes a victim of challenge and ridicule.

4.2.3. The dynamic contextual harmony The criminal and legal systems need to consider and seek to attain harmony of contexts 45

within which sexual behaviours of adolescents are exhibited. The questions of why, how, where and with whom young adults engage in sex (Chalmers, et al, 2006) need to be critically analysed and addressed when legislating, creating and including sections in the penal codes. The social, cultural, economic and political dynamisms in any country and/or society need to work harmoniously to render the legal frameworks plausibly relevant. Ingham and Aggleton's (2006) edited work, though not in a criminal context, provides a good analogy of how young people's sexual activities are affected by the wider contexts within which they live. Appreciation is made of the fact that the integration of all these contexts into a unified and consensual point is not easy, especially in the area of sexuality, but making a fool of the legal system like it is in defilement cases is not worthy doing, neither can it be the best option. In fact, some offenders may circumvent the system due to such complexities and loopholes; thereby continuing to mock the system and complicate the work of those in positions of influence. Ingham and Mayhew (2006:209) noted that the field of sexual and reproductive health poses considerable additional challenges that need to be considered, including: a whole raft of religious, cultural, social and community attitudes that affect responses of those in positions of influence. It should be noted however that the same challenges are posed to adolescents themselves and the criminal justice system as a whole. Moreover, the adolescents' challenges are worsened by psychobiological components of their sexuality.

Hard as they may be, it is until such contexts are somewhat harmonised that legal procedures can attain their intended goals to some substantial degree. Otherwise, as it stands now, the legal war on defilement especially in regard to status offenders in Uganda seems to have been lost.

4.2.4. The Legal redress 46

The Penal Code has some defects that need to be considered in regard to adolescent sexuality and especially pertaining to status offenders. This is especially in respect to issues of age of consent, sex discrimination, and prosecution complexities for real child abusers. Sexual precocity of girls can help expound on consent and its complexity here. A girl of 17 years may actually look to be older than her age and is capable of love dating and love making. Sex with her is illegal (in Uganda), but this may be practically hard to prove, believe and hence prosecute, especially when the two are in love and have consented to have sex in their relationship. This implies that the law is somehow interfering with the normal process of dating, lovemaking and family formation. In this regard, I suggest that in order to ably protect young people from sexual exploitation but at the same time allow those that are almost adults the freedom to partner up (finding their own families as per Article 31(1) of the of the 1995 Constitution of Uganda), the age of consent needs to be reduced to 16 years. Moreover, those that are below this age but are genuinely and lovingly involved need not be taken to be ignorant and unable to consent as the law has always assumed. Instead, parents and the wide social fabric must be nurtured to nurture such relationships so as to have responsible future families therein. As for child sexual abusers or defilers, rapists and those who sexually assault, I have no kind words for them; male or female. It is only unfortunate that the current penal code seems not to realise that women also sexually victimize males. However, the state needs to consider the economic implications of prosecution in regard to the defiled victims and their families; and take action on their behalf more seriously than it is now. Otherwise, private illegal financial settlement of cases shall always be the solution. On this, Magee (2006) observed that the state and its structures, by not providing the victim with the resources to pursue defilement criminally, transform the victims’ problem into a financial problem. It makes sense and is indeed rational for the victim to seek a financial resolution to what has now been transformed into a financial problem by the state. Uganda's current 47

scheme may suffer in this way if it is not enhanced with full enforcement against defilement. Although Magee's observations do not discriminate and distinguish between offenders as I would wish them to, they vividly show how the criminal approaches to defilement may not make a big difference in its prevention. Many victims’ families will accordingly resort to financial settlements because the prosecution process itself creates and warrants spending on their part. Yet such families see no gain in sending an offender, a probable husband to their daughter (the victim) to prison and then keep her with them. This is worsened by fears of never to get a suitor due to the loss of the virginity, the much treasured element in African communities in marriage arrangements. If it gets lost, the one who has made her loose it must pay dearly for it or else marry her and meet the dowry that would indeed be paid normally.

By way of recommendation, I observe that full enforcement of the law on defilement is helpful but it will be more helpful if complexities on status offenders are well streamlined in the whole legal and justice systems especially in the relevant Penal Code sections.

4.2.5. Sexual health and policing defilement in the community The tendency of the state through police and the general criminal justice system to pry or to be seen to be doing so into adolescents' sexuality is of paramount concern and implication for their sexual development and health. Young people may end up having sex with guilt. They may be more preoccupied by secrecy at the expense of their sexual and reproductive health. In this case, sexual encounters may be stealthily and hurriedly organised, with less concern about pregnancies or HIV/AIDS. In this way, adolescents will not take precautions (to use condoms or pills) when they get any slightest opportunity to have sex. In this respect, I suggest that young people need to be provided with relevant information and be nurtured to make informed decisions when about sex. The educational 48

and health systems need to work harmoniously with the family structures to address this rather complex aspect of human life. Threats and criminal sanctions may help but not as effectively as proper information provision.

The policing of defilement is hard because police officers have to investigate the offence fully before charging the accused and committing him to courts of law. But in the case of consenting adolescents, investigations are very complicated. The lovers may connive with the supposedly offender and deny to have had sex. In some cases, parents may wish to have their case settled outside courts (Magee, 2006). Yet, complicated by corruption linkages like bribes,28 the police in Uganda have been earmarked and accused for perpetrating settlement of defilement cases outside courts. The work of the police has indeed been complex, yet few seem to appreciate such dilemmas. It is therefore important that issues of how to effectively police sex offences among minors are given priority in research and policy frameworks, the intricacy of their criminalization notwithstanding. 4.3.

Conclusion

I have in this dissertation shown that defilement is a very broad offence as per its legal definition. It does not distinctively separate children from adolescents; neither does it take into consideration the plight of status offenders. I have shown that most legislation have been based on child sex abusers and use the same basis to approach issues of consensual sex between young adults. The theoretical frameworks within which sexual offences are explained are lacking aspects of status offenders. It is only in the legal frameworks and in a bid to deter child sexual abuse that this aspect can be justified. However, as has been indicated, it may complicate the smooth adolescent sexual development.

I have also tried to show that most literature and discourses about defilement do not 28

The CIET found out that in Uganda, the police service was identified as the public sector most in need of reform. Nearly 60% of Ugandan respondents had been asked for a bribe by the police.

49

clearly spell out its prevalence, especially in the Ugandan legal context. The discrepancies surrounding the issue of status offenders has not been clearly spelt out in relevant literature, neither have their threatening numbers been portrayed in the context of defilement. Many of the studies and discourses just allude that defilement in form of early marriages are rampant but don't suggest legal proceedings. I conclude that consensual sex between adolescents may not have been a crime and section 129 of the penal code need revision or amendment. However, I have not rubbished the usefulness of defilement as an offence in regard to child sexual abusers and paedophiles. These need to be dealt with in the most stringent way possible; where loopholes exist, the state structures need to address them to effectively and fruitfully administer justice.

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