Children’s Welfare: an Appraisal of the Rights of Children Conceived From Sexual Offences

Abstract

Sexual offences are on the rise worldwide despite stiff penalties imposed by the criminal justice system. The sexual offences Act (Kenya), the Criminal Procedure Code, the Evidence Act, and Constitution of Kenya, the Children’s Act, the Penal Code, and international conventions are reference statutes. Sexual offences leave a bad taste in the minds of the victims and their close relatives1. To some, unless properly counseled, they may leave permanent emotional scars2. These scars may affect how the victims relate with members of the opposite sex and react to ordinary life circumstances3. Very few sexually assaulted women choose to keep their pregnancies. Political and cultural taboos associated with sexual offences are significant contributors to the challenges children born from sexual offences encounter. These children are deeply affected by social upheavals brought about by their conception and their treatment by society based on their biological origins.4 Children are considered unwanted and, at times, may be exposed to infanticide, abortion, and suicide. Those who survive are often, at times, given for adoption. Their mothers get into unwanted parenthood resulting in troubled relationships with their parents, siblings, and relatives. The vulnerability of these children may lead to stigmatization and struggles with identity. A child’s identity is everything; one’s identity determines how he/she enjoys his rights in any state. Some countries allow termination of parental rights upon conviction. It is clear that in such circumstances, children born from sexual offences grow up without one parent or at times both. In such circumstances, the government should take responsibility and ensure that such children’s rights are protected. All children irrespective of their conception/origin are protected under Article 59 of the Constitution of Kenya which provides for human rights. More focus has been on the first victim (complainant in the sexual violence case) with very little attention to the child (second victim) born from such cases. There is no proper legal framework in Kenya that protects 1Waweru, Kiarie. “Sexual offences omission and ambiguities.” kenyalaw.org. Kenya law reports, 7 Feb. 2007. Web. 19 Jun. 2020. 2 Ibid 3 Ibid 4 Carpenter C and others, ‘Protecting Children Born of Sexual Violence and Exploitation in Conflict Zones’ 23 Children born from sexual violence. The Children Act S.55 provides that no child shall be subjected to discrimination on the ground of origin, sex, religion, creed, custom, language, opinion, conscience, colour, birth, social, political, economic or other status, race, disability, tribe, residence or local connection. This study aims to identify the rights of children born of sexual offences. Identify the loopholes in our legal system and recommend solutions to the challenges.