On the way from school, a nine-year-old boy stopped a girl and accused her of having stolen his lost pen. He searched her schoolbag but found nothing. Then, the girl said, with the help of two other girls, ages seven and eight, the boy pinned her to the ground and raped her.
The three were released into their parents’ custody, with the condition that they stay out of trouble, but not before having spent six days in prison, held in the cells with adult offenders.
In this ruling, the magistrate said that there was no evidence that the girl had been raped. Besides, according to the judgment, “Under the provisions of Section 14 (3) of the Penal Code such a male person under the age of 12 years is presumed to be incapable of having carnal knowledge, and, in any event, is presumed as being incapable of committing the offence of defilement.”
The Standard, one of Kenya’s leading newspapers, ended the story by asking; “Why for example, were the minors kept in adult cells for a week if they were innocent?” Kenya’s new constitution provides that children not be detained, except as a measure of last resort, and that children be held separately from adults.
Every society demarcates childhood from adulthood. In traditional societies, the dividing line was clear: before the initiation ceremony, you were a child; after the ceremony, you were an adult. At what age that ritual was performed has never been uniform, although puberty was often the indicator. Most of the world today recognizes that there is a difference between sexual and psychological maturity. At puberty you can procreate, but few societies endorse marriage at thirteen.
Modern society has created a middle ground between childhood and maturity. It is called adolescence. Where this begins and ends is especially hazy since there is nothing biological about it. Adolescence is what any particular society says it is. Just as the limits of adolescence are flexible, so too is society’s response to those who fall within its limits. For example, the United Nations says that those who serve in combat before 18 are child soldiers, a breach of human rights protocols. Such soldiers cannot be held accountable for their actions. Yet the United States allows military enlistments for 17-year-olds (with parents’ permission), but they can’t serve in combat, a requirement that has been breached several times in recent years.
Drinking, driving, voting, leaving school, serving in the military—all have age requirements but there is little or no consistency in setting the bar. This isn’t because legislators don’t know what they are doing but because the notion of when someone is in full capacity of their reason—and is able to control his or her impulses—is in itself not at all clear and differs from person to person. But a line must be drawn, it must be drawn to apply to everyone, and we do so.
What to do with a nine-year-old who allegedly defiled a girl is exceedingly difficult and best left to those in special courts created to deal with adolescents. What everyone can agree to is that no child should be remanded with adults and that who did so and took six days to bring the children before a judge have failed in their legal and moral duties.