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On consent


When I started this blog, I think 7 years ago, I wasn’t sure it would last this long. I wasn’t even sure what I would write after the first few blog posts, but here we are. I hope all you who drop by find something useful, interesting, pleasurable or thought provoking as a take away.

And critics like Brian who are charitable in their disagreement. You make this a worthwhile venture. And all of you who make this blog great through your interactions, thank you.

But I digress.

There is a case in UK about consent between a man and his ailing wife and the comments of the judge is already raising heat.

On the same theme, three court of appeal judges have forced on a debate on Kenyans regarding the age of consent. One of the matters raised is the about lowering the age of consent from 18 to 16 and the issue of disproportionate punishment meted on boys for having sex with their agemates who later sometimes end up being treated as sex offenders.

What are your thoughts on either of the two matters.

About makagutu

As Onyango Makagutu I am Kenyan, as far as I am a man, I am a citizen of the world

52 thoughts on “On consent”

  1. jim- says:
    April 4, 2019 at 07:16

    16 is fine as long as it is accompanied by a sliding scale of some type. Maybe set a four year (high school here is 4 years) and the older partner not over 20. Something like that I’d be willing to agree to.
    Kids are judged solely on age and maturity levels vary quite a bit. My daughter is 19 as a senior. If she had a boyfriend a 13 months younger she would be an offender. That’s not right.

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    • makagutu says:
      April 4, 2019 at 07:26

      Some of the comments of those opposed to it argue this will allow older men to have sex with young girls. They say it’s a sliding slope or whatever it is called.

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      • jim- says:
        April 4, 2019 at 07:34

        Not sure about Kenya but here those older kids are mentally pretty young compared to 30-40 years ago. They may have more exposure to sex now, but they’re pretty immature. Registering them as offenders is pretty harsh unless no consent was truly given from a peer. I’m just thinking out loud here. Not really sure enough to conclude anything.

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        • makagutu says:
          April 4, 2019 at 07:37

          Kids here, just like in many places, are exposed to sex from too early an age. Registering or even jailing young boys for sex with peers is in deed harsh. A lot more need to be looked at but this debate is not going to be had because some people are shouting

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  2. Tish Farrell says:
    April 4, 2019 at 09:58

    Criminalizing sex between consenting teens ONLY on the basis of age is crass and unfair. The issue seems to be how to protect the young or (as in the UK case) the incapacitated, or indeed anyone for that matter from being exploited or abused. Did THEY give consent? Kenya of course suffers from predation by dreadful sex tourists who target young teens. It would be good to curb those activities! I always learn something new here, Mak 🙂

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  3. Swarn Gill says:
    April 4, 2019 at 13:14

    I only follow this blog because I like koalas. Otherwise it’s a pretty shit blog. 🙂

    Happy 7 years my friend. As I’ve said before you are one of the brightest most well-read people I know. I enjoy your thoughts as you explore different points of view through your reading.

    I agree with Tish above. I think that this is one of those cases where we needs laws that act more as guidelines over absolutes. Maybe any situation where someone over 18 is having a relationships with someone under 18 should be at least reviewed. Make sure the parents of the 16 year old are okay with the relationship, I don’t know. Such things should be on a case by case basis. The slippery slope argument presumes that we can’t make distinctions between healthy and unhealthy relationships. A 16 year old girl is typically as mature as an 18 or 19 year old boy. I don’t see it as that surprising of a situation. Age is such an arbitrary boundary. To say when you turn 18 you are somehow fundamentally different than the day before is ludicrous. I don’t think absolute rules based on age are a good idea in general.

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    • makagutu says:
      April 4, 2019 at 15:13

      I knew the only thing that would save this blog from oblivion was the koala 🙂
      Most under 18s have their relationships in secrecy. You’d not know so it becomes difficult to police. But yes, the law needs to be able to protect minors. Those who implement the law should at least have the presence of mind to evaluate other circumstances involved in the case.
      Absolutism is problematic. Between one day and another, one doesn’t feel they have aged!

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  4. judyt54 says:
    April 4, 2019 at 14:04

    My husband was a juror some years back in a trial that involved two young girls (in their early teens) and a neighbor man who was in his late teens.
    He gave me blow by blow of the entire judicial process, and he said he couldn’t see anything predatory at all, since the girls openly had sollicitied the MAN for sex, and as he put it, none of them seemed the worse for the experience.
    At the time I thought, and still do, if everyone is consenting, no coercion involved, what’s the problem? And why destroy a young man’s life with the stigma of ‘sex offender’ on every page. It also conjures up the image of a ravening middle aged man who stalks wimmin.

    Im not sure how I’d react if it was MY 12 year old daughter, but one thing I would do, if she was that intent on all of it, would be to get her on birthcontrol, and teach her about STDs.

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    • makagutu says:
      April 4, 2019 at 14:41

      I think there is the issue about sex ed. Which again you’d find some parents and church leaders opposed to; they would rather bury their heads in sand and pretend their children know nothing about sex

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  5. inspiredbythedivine1 says:
    April 4, 2019 at 15:49

    First time I had sex it was with myself and I did NOT give my consent to do it! Many who know me will say that experience has deeply scarred me to this day.

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  6. Robert A. Vella says:
    April 4, 2019 at 16:45

    Like the above comments stated, this is a difficult issue to enforce strictly through the law. Each case is unique, and many are not clear-cut instances of criminal behavior. The whole issue of consent is so murky because sexual interactions typically occur in private between two individuals with no witnesses and little direct evidence.

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  7. basenjibrian says:
    April 4, 2019 at 18:34

    Interesting discussion in the comments. No easy answers. But this illustrates one of the wonderful things about this Blog: The commentariate is always interesting and thoughtful. Occasional Godbots aside. 🙂 Thank you for maintaining this forum for us!

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  8. renudepride says:
    April 4, 2019 at 18:53

    As long as the age of consent is equal (the same) for all of those involved in a particular sexual encounter, there should not be a problem. However, all of the individuals should be treated the same if they violate the age of consent. The genders involved make no difference. Have a great day, my Kenyan brother! Naked hugs!

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  9. Nan says:
    April 4, 2019 at 21:10

    Re: the article you referenced (rather than the age of consent issue) —

    As a woman, it disturbs me when a MAN makes the comment referenced in the article and pinpointed by the Labor MP: I cannot think of any more obviously fundamental human right than the right of a man to have sex with his wife.

    A fundamental right? I agree with the Labor MP — “No man (in the UK) has such a legal right to insist on sex.”

    Sorry guys — being “horny” doesn’t give you “rights” over a woman’s body.

    Liked by 1 person

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    • Nan says:
      April 4, 2019 at 21:11

      P.S. I really enjoy your blog. You cover a wide range of topics. I also like your pointed comments. 🙂

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    • inspiredbythedivine1 says:
      April 4, 2019 at 21:19

      True. But as our fine President has taught the world, if one is famous, THEN one can treat women’s bodies as they wish because….well….because they’re famous. God, but do I LOVE the wonderful things Trump has taught us! Don’t you? 🙂

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    • makagutu says:
      April 6, 2019 at 10:03

      People have filled for divorce citing conjugal rights http://kenyalaw.org/caselaw/cases/view/139746.
      How is this to be settled?

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      • Nan says:
        April 6, 2019 at 18:44

        From my brief reading, it seems like adultery was the underlying reason rather than lack of sex in the marriage. Also cruelty and desertion is mentioned. Did I miss something?

        But even so … I have never heard of frequency or absence of sex being part of the marriage vows … or in the marriage license. Of course it’s expected/assumed and, yes, it may be cited as a cause for divorce. But since it’s not part of the written “agreement,” I would say it’s up to the judge.

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        • makagutu says:
          April 6, 2019 at 20:02

          11. In her petition and evidence, the petitioner alleges that the respondent was cruel to her; assaulting her; hurling insults and being oppressive to her; being denied her conjugal rights just to mention a few.  Cruelty as was quoted by Justice S.J. Chitembwe in KAS vs MMK (Divorce Cause No. 10  of 2016) from the Black’s Law Dictionary is defined to be:

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        • Robert A. Vella says:
          April 6, 2019 at 20:26

          Here’s what I found regarding the law:

          From: https://definitions.uslegal.com/c/conjugal-rights/

          Conjugal Rights refer to the mutual rights and privileges between two individuals arising from the state of being married. These rights include mutual rights of companionship, support, sexual relations, affection, joint property rights and the like. Loss of conjugal rights will also amount to loss of consortium. Loss of consortium can refer to decreased or limited sexual activity, diminished care, companionship and / or affection between spouses as the result of a personal injury. Damages can be claimed for loss of consortium. The act of a husband or wife staying separately from the other without any lawful cause is refereed to as subtraction of conjugal rights.

          From: https://mitnicklawfirm.com/can-divorce-spouse-withholding-sex-2/

          According to legal precedent, marriage implies that there will be a sexual relationship between the partners. Withholding sex can therefore be grounds for divorce. This is often referred to as “constructive abandonment.” Even though the withholding spouse has not physically abandoned their partner, it can be argued that they have spiritually withdrawn from the marriage and therefore is grounds for an at-fault divorce. Considering the intensely personal nature of this action, the lack of witnesses can make it difficult to prove in court. Another tort often mentioned in relation to divorces of this nature is “alienation of affections.” This action is brought against a third party (an extramarital affair, a family member, a therapist, etc.) who is alleged to be responsible for the failure of the marriage. However, this tort has been abolished in most jurisdictions, and as of 2016 is only recognized in 6 U.S. states.

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          • makagutu says:
            April 7, 2019 at 08:59

            Thanks Bob.
            This is quite informative

            Liked by 1 person

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          • basenjibrian says:
            April 8, 2019 at 17:53

            Best solution to this is “No Fault Divorce” imho

            Liked by 2 people

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            • Robert A. Vella says:
              April 8, 2019 at 22:19

              Agreed. I know this might be controversial to say, but the whole legal construct of marriage may be becoming obsolete – at least in some countries anyway. Here in America, people are getting more wary of making such a huge commitment especially when the financial costs of divorce can be so severe. In my state (Washington), I was surprised to see recent TV ads by a law firm targeting young married men who might be considering divorce. The commercial messaging strangely appealed to their awakened awareness of being “stupid” about marriage. I’ve never seen anything like that before.

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  10. empressswamiii says:
    April 7, 2019 at 14:37

    While there are so many cases on sexual offences in our courts. Lowering the age of consent to 16 definitely not the way to go. I don’t even understand the rationale.

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  11. jakaitruth says:
    July 25, 2019 at 11:56

    Kenyan government is a reflection of it’s people.In my opinion parents are failing in their role of guiding children to become responsible adults hence the need for a scapegoat.Lowering the age of consent only serves to pardon perpetrators

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