Age of consent should not be a barrier to access to services

by Esther Aoko

Should access to sexual and reproductive health services be dependent on the age of consent?

In Kenya we are currently living in interesting times where different actors are using the loopholes in our laws and policies to either try to lower or raise the age of consent for sex in a bid to ‘protect’ children. But is it really serving the best interests of the children if the drive for these efforts is rooted in personal beliefs and ideologies that do not reflect their realities?

The age of consent for sex is the minimum age at which an individual is considered legally old enough to consent to participation in sexual activity. Laws on age of consent for sex vary considerably around the world with many countries requiring young people to be over the age of 14 before engaging in sex.

Kenya has legal and policy safeguards for the protection of children from sexual violence and manipulation. Article 260 of the Constitution of Kenya, 2010 defines a child as an individual who has not attained the age of 18 years. Similarly, the Sexual Offences Act no 3 of 2006 gives the minimum age of consent for sex as 18 years. The purpose of the age of consent for sex is to protect persons under the age of 18 years from sexual violence, coercion and exploitation. It should not be used as justification for the denial of any human rights as this will be contradictory to its mandate. Yet we continue to see persons under the age of 18 years being denied access to sexual and reproductive health services because of the age of consent, when this a human right that is enshrined in our constitution. While the two are connected as they both aim to protect the rights of young people, they should be used to complement each other and not to contradict each other.

Under Section 8(1) of the Kenyan Sexual Offences, a person who commits an act which causes penetration with a child is guilty of an offence termed ‘defilement’. So let’s think of a scenario where a child is defiled. At this point the age of consent has not been respected and upheld. This is now where access to services comes in. The survivor of sexual violence will need to access sexual and reproductive health services such as HIV, STI, emergency contraception and/or pregnancy services. If in this scenario, the people involved decide not to provide these services to the survivor, wouldn’t that then be stripping away their human rights and laying a basis for further violence and coercion? While the age of consent seeks to protect children from sexual violence, access to services seeks to promote right to the highest attainable standard of healthcare for all. Therefore, both are critical aspects in the journey to the realisation of a world free from violence and attainment of bodily autonomy.

This focus on protection against sexual violence and coercion also fails to recognise that some people under 18 will have consensual sex, and should be able to access contraceptives, sexual health and HIV prevention, care and treatment services. They deserve to be able to access services and protect themselves from unwanted pregnancy, HIV and STIs, and access care, treatment and support.

It is therefore of key importance for us to identify and eliminate any loopholes in our laws and policies that can be used as a basis for denial of human rights. Aligning our laws and policies to ensure that they complement each other will also provide for the elimination of different interpretations and scenarios where one law or a policy is used against the other.

Having the same age of consent for sex and for access to services may be seen by some as alignment, but it falls far short of ensuring a legal and policy framework that is not only a true reflection of the lived realities of children but also serves their best interests.

Peer reviewed by Anne Mugo, Emma Bell, Luisa Orza, Fiona Hale.

Follow Esther on Twitter @esther_aoko

If you’d like to reference this article, please use the following suggested citation:

Aoko, E. (2022) Age of consent should not be a barrier to access to services. Making Waves. https://makingwaves.network/2022/11/28/age-of-consent-should-not-be-a-barrier-to-access-to-services/