At Section 6, the Act provides that when a person, who intentionally and unlawfully forces or causes another person to take part in an Indecent Act with him/herself, or another person, or an object, including any body part of an animal, is guilty of this offence which carries a penalty of not less than five (5) years. The exception to this section is in cases where an act which may be perceived as being indecent is actually done to save a life or in the cause of a medical procedure.
-5) Acts which cause penetration or indecent acts committed within the view of a family member, a child or person with mental disabilities
Section 7 provides that a person who intentionally commits rape or an indecent act with another within the view of a family member, a child or a person with mental disabilities is guilty of an offence and is liable upon conviction to imprisonment for a term which shall not be less than ten years.
-Indecent Act with an Adult
At Section 11A the Act provides for the offence of indecent Act with an adult which carries a sentence of not less than five (5) years in prison or a fine not exceeding fifty thousand shillings (kes.50, 000) or both.
-19) Incest by Male and Female Persons
This offence is covered under Sections 20 & 21 to the effect that any person who has sexual intercourse with someone who he/she knows is his/her relative commits the offence of incest. There is no need for consent under this offence. This offence carries a jail term of not less than ten (10) years and may be enhanced to life depending on the age of the victim.
-For avoidance of doubt, Section 22 provides that the relatives include half brother/ sister/father/mother irrespective of whether the children were adopted or whether the parents are legally married or not.
-There are various measures that a court may institute to ensure that a child victim of incest is protected including removing the child from the offending relative or terminating parental right of the offending parent or guardian.
-20) Sexual harassment
-A person in a position of authority or holding a public office who continuously makes any sexual advances or requests which he/she knows are unwelcome is guilty of sexual harassment as provided for under Section 23 of the Act. This offence carries a jail term of not less than three (3) years or to a fine of not less than one hundred thousand shillings (Kes.100, 000) or both.
(B.):-SEXUAL OFFENCES ACT No. 3 of 2006 / kenyalaw.org:-
-An Act of Parliament to make provision about sexual offences, their definition, prevention and the protection of all persons from harm from unlawful sexual acts, and for connected purposes
-"indecent act" means any unlawful intentional act which causes-
| (a) | any contact between any part of the body of a person with the genital organs, breasts or buttocks of another, but does not include an act that causes penetration; |
| (b) | exposure or display of any pornographic material to any person against his or her will; |
- Intentional and unlawful acts| (1) | An act is intentional and unlawful if it is committed- | (a) | in any coercive circumstance; |
| (b) | under false pretenses or by fraudulent means; or |
| (c) | in respect of a person who is incapable of appreciating the nature of an act which causes the offence. |
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| (2) | The coercive circumstances, referred to in subsection (1)(a) include any circumstances where there is- | (a) | use of force against the complainant or another person or against the property of the complainant or that of any other person; |
| (b) | threat of harm against the complainant or another person or against the property of the complainant or that of any other person; or |
| (c) | abuse of power or authority to the extent that the person in respect of whom an act is committed is inhibited from indicating his or her resistance to such an act, or his or her unwillingness to participate in such an act. |
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| (3) | False pretences or fraudulent means, referred to in subsection (1)(b), include circumstances where a person- | (a) | in respect of whom an act is being committed, is led to believe that he or she is committing such an act with a particular person who is in fact a different person; |
| (b) | in respect of whom an act is being committed, is led to believe that such an act is something other than that act; or |
| (c) | intentionally fails to disclose to the person in respect of whom an act is being committed, that he or she is infected by HIV or any other life-threatening sexually transmissible disease. |
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| 37. | Keeping scene of crime secure etc. | (1) | Any person who intentionally interferes with a scene of crime or any evidence relating to the commission of an offence under this Act is guilty of an offence and is liable upon conviction to imprisonment for a term of not less than three years or to a fine of one hundred thousand shillings or to both. |
| (2) | Interference referred to in subsection (1) includes but is not limited to- | (a) | tampering with a scene of crime; |
| (b) | interference or intimidation of witnesses; and |
| (c) | any other act or omission that would hinder or obstruct investigations or materially misrepresent any evidence. |
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| -33. | Evidence of surrounding circumstances and impact of sexual offence Evidence of the surrounding circumstances and impact of any sexual offence upon a complainant may be adduced in criminal proceedings involving the alleged commission of a sexual offence where such offence is tried in order to prove- | (a) | whether a sexual offence is likely to have been committed- | (i) | towards or in connection with the person concerned; |
| (ii) | under coercive circumstances referred to in section 43; and |
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| (b) | for purposes of imposing an appropriate sentence, the extent of the harm suffered by the person concerned. |
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| -29. | Cultural and religious offences Any person who for cultural or religious reasons forces another person to engage in a sexual act or any act that amounts to an offence under this Act is guilty of an offence and is liable upon conviction to imprisonment for a term of not less than ten years. |
| -24. | Sexual offences relating to position of authority and persons in position of trust |
| (5) | Any person who being in a position of trust takes advantage of his or her position and induces or seduces a person in their care to have sexual intercourse with him or her or commits any other offence under this Act, such sexual intercourse not amounting to the offence of rape or defilement, shall be guilty of an offence of abuse of position of trust and shall be liable upon conviction to imprisonment for a term of not less than ten years. |
| -23. | Sexual harassment | (1) | Any person, who being in a position of authority, or holding a public office, who persistently makes any sexual advances or requests which he or she knows, or has reasonable grounds to know, are unwelcome, is guilty of the offence of sexual harassment and shall be liable to imprisonment for a term of not less than three years or to a fine of not less than one hundred thousand shillings or to both. |
| (2) | It shall be necessary to prove in a charge of sexual harassment that- | (a) | the submission or rejection by the person to whom advances or requests are made is intended to be used as basis of employment or of a decision relevant to the career of the alleged victim or of a service due to a member of the public in the case of a public officer; |
| (b) | such advances or requests have the effect of interfering with the alleged victim's work or educational performance or creating an offensive working or learning environment for the alleged victim or denial of a service due to the member of the |
| (c) | public from a public office. |
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-11A. Indecent act with adult :-Any person who commits an indecent act with an adult is guilty of an offence and liable to imprisonment for a term not exceeding five years or a fine not exceeding fifty thousand shillings or to both.
| -21. Incest by female persons:- The provisions of section 20 shall apply mutatis mutandis with respect to any female person who commits an indecent act or act which causes penetration with a male person who is to her knowledge her son, father, grandson grand father, brother, nephew or uncle. |
(C.):-( https://okcinjurylawyer.com/2022/06/answers-to-common-sexual-assault-questions-in-oklahoma/ )
-Sexual Harassment: Sexual harassment occurs generally in the form of sexual advances, such as: requests for sexual favors, vulgar language, inappropriate gestures and jokes, and displaying offensive pictures.-Consent in Sexual Assault must be a voluntary, sober, informed, mutual and verbal agreement to the given sexual contact.
-Consent cannot be coerced and must be present at each step of every sexual encounters; it can never be assumed or implied ; and there is also no requirement that the victim fight back against the perpetrator.
-Criminal Sexual Assault Charges: In criminal court, the government seeks to punish a sexual assault defendant for the unwanted sexual touching done to a victim. The victim will usually participate and assist the government in their case through witness testimony, but they are not a party and do not have a say in the direction of the case that the prosecution decides to pursue.
-The burden that the government must prove is that the defendant sexually assaulted the victim beyond a reasonable doubt.
The outcome of a criminal sexual assault case if a guilty or not guilty verdict by the jury. If the defendant is found to be not guilty, they can walk free and are innocent in the eyes of the law. If the verdict is guilty, however, they are punished by incarceration, probation, or can be required to pay the victim for any financial harms they incurred as a result of the sexual assault. The sentencing hearing happens after the guilty verdict is announced by the court.
-What is an assault? An assault is the attempt or threat to inflict offensive physical contact or bodily harm on another person, which puts them in immediate danger of or in apprehension of that harm. Examples of assault include: (a.)-Threats of sexual assault and (b.)-Attempts to sexually touch another person.
-What is a battery? A battery is a completed assault. It is the unlawful physical contact with another person so has not consented to that contact. While assault only requires the threat of physical contact, battery requires that physical contact actually happens. Examples of battery include:
(a.)-Unwanted sexual touching ; (b.)-Rape ; (c.)-Forcible Sodomy; (d.)-Forcible Object Insertion; (e.)-Martial Rape ; (f.)-Sexual contact with minors (consensual or nonconsensual) ; (g.)-Incest
-What is intentional infliction of emotional distress? The law does not just recognize physical harm, but emotional harm as well. Intentional infliction of emotional distress occurs when the perpetrator recklessly or intentionally acted in an extreme or outrageous way that actually caused the victim severe emotional distress.
-Sexual Assault is an offense where a person engages a victim in unwanted sexual touching.
-The victim has the opportunity to sue the person who sexually assaulted them for claims such as intentional infliction of emotional distress as a result of the trauma and negligent infliction of emotional distress for failing to take action to prevent the continued sexual assault or trauma.
(D.):- PROTECTION AGAINST DOMESTIC VIOLENCE ACT NO. 2 OF 2015 / Kenyalaw.org
-AN ACT of Parliament to provide for the protection and relief of victims of domestic violence; to provide for the protection of a spouse and any children or other dependent persons, and to provide for matters connected therewith or incidental thereto;
-"dwelling house" includes any mobile home or other means of shelter, placed or erected upon any land and intended for occupation on that land;
-"emotional, verbal or psychological abuse" means a pattern of degrading or humiliating conduct towards the applicant, including but not limited to the following— (a) repeated insults, ridicule or name-calling; and (b) repeated threats to cause emotional pain.
-"harassment" means engaging in a pattern of conduct that induces in an applicant the fear of imminent harm, including— (a) watching or loitering outside or near the building or place where the applicant resides, works, carries on business, studies or happens to be; (b) repeated contact or attempts to contact the applicant by telephone, electronic means, post or otherwise, whether or not a conversation ensues; and (c) sending, delivering or causing the delivery of offensive or abusive documents or offensive objects to the applicant;
-"intimidation" includes uttering or conveying a threat or causing an applicant to receive a threat which includes a fear of imminent harm to the applicant;
-"physical abuse" includes any act or threatened act of physical violence towards the applicant;
-"stalking" includes pursuing or accosting a person;
- Meaning of domestic violence. In this Act, "violence" means (a) abuse that includes:- (i) child marriage; (ii) female genital mutilation; (iii) forced marriage; (iv) forced wife inheritance; (v) interference from in-laws; (vi) sexual violence within marriage; (vii) virginity testing; and (viii) widow cleansing;
-(b) damage to property; (c) defilement; (d) depriving the applicant of or hindering the applicant from access to or a reasonable share of the facilities associated with the applicant's place of residence; (e) economic abuse; (f) emotional or psychological abuse; (g) forcible entry into the applicant's residence where the parties do not share the same residence; (h) harassment; (i) incest; (j) intimidation; (k) physical abuse; (l) sexual abuse; (m) stalking; (n) verbal abuse; or (o) any other conduct against a person, where such conduct harms or may cause imminent harm to the safety, health, or well-being of the person.
-(2) "Domestic violence", in relation to any person, means violence against that person, or threat of violence or of imminent danger to that person, by any other person with whom that person is, or has been, in a domestic relationship.
(E.):-(http://ir.kabarak.ac.ke/bitstream/handle/123456789/783/Challenges%20in%20Litigating%20under%20Kenya%E2%80%99s%20Protection%20from%20Domestic%20Violence%20Act%20%281%29.pdf?sequence=1&isAllowed=y )
-The Meaning of Domestic Violence under the PDVA The first part of the PDVA is dedicated to definitions. Of importance to any person who wishes to use this Act to get reliefs in court is the definition of domestic violence. The Act defines domestic violence in three parts. First, it defines violence, then, it defines domestic violence, and finally defines the term domestic relationship. The term violence is defined in section 3 of the PDVA to include abuse that include child marriage, female genital mutilation, forced marriage, forced wife inheritance, interference from widows, sexual violence within marriage, virginity testing and widow cleansing.
-Through this provision, the PDVA clearly shows the desire of the drafters of the law to categorize harmful cultural practices, especially against women as domestic violence. It is, therefore, correct to state that this law is meant to provide protection against harmful cultural practices. While this is laudable, it presents some problems when it comes to litigation. The PDVA also defines violence to include acts such as damage to property, defilement, hindering applicant access to facilities, economic abuse, emotional or psychological abuse, forcible entry, harassment, incest, intimidation, physical abuse, sexual abuse, verbal abuse and any other act that may cause harm to the safety, health and well-being of the person.
-Domestic violence is defined as violence as described above, or the threat of such violence by a person who has or had a domestic relationship with the victim.
-Kenya's Protection from Domestic Violence Act 2015 recognizes both a single act and a pattern of behavior, even when these acts when considered in isolation may appear to be minor or trivial.
-The third part of the definition of domestic violence involves the definition of the domestic relationship. This is crucial to litigations under the Act as it delineates who the potential perpetrator could be. It is the distinguishing factor between normal run–of-the-mill criminals and the special ones who fall under this Act. The perpetrators here must have at some point enjoyed a domestic relationship with the victim. According to the definition, a person is in a domestic relationship with another if these people are married, have previously been married, are living in the same household, are members of a family member, are engaged to be married or have previously been engaged, have a child together, or enjoy a close personal relationship. In the definition of the domestic relationship, the Act has provided guidance as to who may not be regarded as being in a domestic relationship with a complainant. These include persons who are connected to the complainant only through a landlord-tenant relationship, employer-employee relationship or simply because they occupy the same dwelling house.
-This criterion is also used to describe people who may not be considered as sharing a household for the purposes of creating a domestic relationship or a close personal relationship. As to determining what a close personal relationship is, the drafters provided some guidance to the courts, which were in no way restrictive as to what to consider when determining that there exists a close personal relationship between the litigants before it. The court may consider the nature and intensity of the relationship, that is, the time spent together, the place or places where this time is spent and the manner in which the time is spent.
-As such the PADVA protects all those affected by violence or the threat of violence and its provisions address both domestic violence and violence outside close relationships. The Act also offers protection against undue harassment in the form of stalking.
-The European Court of Human Rights has held states responsible for violation of the right to life in cases of domestic violence where state organs, such as the Police, the Director of Public Prosecutions and the State, failed to act to effectively protect victims of domestic violence making them responsible for the physical and psychological harms inflicted by the perpetrators."
-Violence violates the right to life, the right to be protected from torture and inhuman and degrading treatment, the right to equal protection of the law, the right to liberty and security of the person, the right to the highest attainable standards of mental and physical health among others.
-Many human right scholars have categorized domestic violence as a specific human rights violation comparing in terms of its gravity to torture or terrorism, and as such the State then cannot escape its duty to protect, promote, and fulfil its mandate just as it is obligated for other human rights.
