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.
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
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.
(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. The Meaning of defilement
3 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.
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
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 See also the Sexual Offences Act 2003 Chapter 42 part I sections 5 to 29
6 See Costa and Wood, (2005) on sexuality and social Change: making the connection: Strategies for action and investment.
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).
(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
non-consensual, 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.
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)
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
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).
developed need to be approached in light of other contexts such as communities, socio-economic 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
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
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.
''‘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
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)
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
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
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
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
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
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
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
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.
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
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
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
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 See for example, Henry, R. vs. Manning [1969] 53 Cr. App. R 150 at 153
19 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
(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,
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.
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
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.22The 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.
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
