How can the law on defilement be made more effective?

Oct 20, 2010

SOME 4% of upper primary school pupils in Uganda have been defiled by their teachers in the last one year, according to a 2008 study funded by the World Bank. That means that 43,000 girls in P5 to P7, roughly between 10 and 14 years old, have been sexually abused by the very people supposed to prote

SOME 4% of upper primary school pupils in Uganda have been defiled by their teachers in the last one year, according to a 2008 study funded by the World Bank. That means that 43,000 girls in P5 to P7, roughly between 10 and 14 years old, have been sexually abused by the very people supposed to protect them.

To defile is ‘to treat something sacred or important without respect’. It also refers to uncleanliness; impurity; corruption of morals or conduct.

In 2007, Section 129 of the Penal Code Act was amended and the amendment was phenomenal. It changed the crime from being defilement of girls under the age of 18 to defilement of person under 18 years of age. This means that the current law punishes the defilement of both girls and boys. This was a grave anomaly which had hitherto discriminated against the boy child. The law provides that:

“Any person, who performs a sexual act with another person who is below the age of 18 years, commits a felony known as defilement and is, on conviction, liable to life imprisonment”. The law provides for the offence of aggravated defilement, which makes one on conviction by the High Court liable to suffer death. The circumstances for aggravated defilement are:

Where the person defiled is below the age of 14 years;

Where the offender is infected with HIV;

Where the offender is a parent or guardian or a person in authority over, the victim;

Where the victim of the offence is a person with disability; or

Where the offender is a serial one.

The law not only punishes the act of defilement but also punishes attempts to defile. Any person who attempts to perform a sexual act with another person who is below the age of 18 years is liable to imprisonment not exceeding 18 years.

In the case of aggravated defilement, any person who attempts to perform a sexual act with another person below the age of 18 years commits an offence and is liable on conviction, to imprisonment for life.

Under the law a person charged with aggravated defilement is obliged to undergo a medical examination as to determine their HIV status.

The defilement law also provides for a definition of “sexual act” which is a new term and means “penetration of the vagina, mouth or anus, however slight, of any person by a sexual organ—vagina or penis; the unlawful use of any object or organ by a person on another person’s sexual organ”.

The definition of “sexual act” may seem graphic but clarity and certainty of the law is critical for effective prosecution of crimes. For example, “unlawful use of object” clarifies that there may be instances when it may be lawful to use an object on a sexual organ like when a doctor is carrying out a surgical operation.

The law on defilement provides for payment of compensation to victims of defilement in addition to any sentence imposed on the offender. It provides for the offence of child-to-child sex, where the offender is a child under 12 years; and when committed by a male child and a female child upon each other when each is not below 12 years, each of the offenders shall be dealt with as required by the Children Act.

In respect to prosecution of cases on defilement, the Police Crime Report of 2009 stated that 7, 360 cases were registered; a total of 4,433 people were arrested and taken to court but only 467 were convicted. The challenges to successful prosecution of cases of defilement include:

Lack of awareness of the law; destruction of evidence by victims who rush to bathe after being defiled;

In some instances the victim chooses not to cooperate with the Police and instead shields the offender. lThe fact that in most cases defilement is committed by family members who prefer to keep it a secret rather than take a relative to court;

The fact that needy parents would rather receive compensation or bride price even when their child has been defiled and the law does not permit marriage of persons below 18 years;

Lack of birth certificates for some children, which makes it hard for one to ascertain the age of the victim;

Limited Police surgeon services;

The need for medical personnel to be made aware of cases of defilement so that they can assist in prosecution of defilement cases;

The need to train law enforcement agents on how to deal with cases of defilement because victims of defilement in most instances need reassurance that the reporting of the case will not harm them further by questioning their integrity or publicising the information;

There is also need for detention centres for child offenders, and establishment of more remand homes which take into account the fragile state of victims of defilement;

There is also need for improved facilitation of the Police and other law enforcement agents; and

The need for increased access to justice and more specifically solving the case backlog in courts of law.

This law on defilement therefore needs to be reinforced by preventive actions such as formal and informal education and creation of awareness; protection of victims and witnesses. This provides for privacy and restores the self-esteem of victims of defilement; and provision of resources for effective prosecution.

(adsbygoogle = window.adsbygoogle || []).push({});