What can Kenyan men AND WOMEN do to stop rape?

[maina]

aeichener said:

This bill MUST fail. Otherwise you could as well re-institute nationwide concentration camps in manjeneti style. How else can you imprison millions of people for years?

And to take up a wording of yours, the intentions of the drafters of this bill can indeed only seem sinister. There are some critics (religious loonies) who oppose the draft for other reasons, but they need not be taken serious. What needs to be taken serious is the incredible formal shoddiness and ineptitude of the text, bereft of even the flimsiest veil of legal training, and the fact that the bill attempts to criminalize the entirety of Kenyan youth. And the entirety (read: the entirety) of all dwellers in Kenyan estates.
What needs to be taken serious are the nefarious consequences which I have outlined above, in my postings. The bill will create the exact *opposite* of what it falsely purports to achieve. And you know it, don't you?

The first draft version was concocted by CRADLE, as much as I know (but you are welcome to correct this assumption); much of its text was copied-and-pasted from foreign provisions totally inapplicable to, and unworkable within Kenya. Incidentally, did Moire O'Sullivan help with it too?

Alexander

Alexander,

Do you know that some years ago in some city in Georgia (actually, if I remember clearly, I think it might have been Atlanta), there was a certain societal loser who was on trial facing a jillion charges of child pornography (22 counts) and rape (18 counts!!!!!!!!!)? The defense attorney did not want there to be any juror in the courtroom whom he perceived to be “biased”. So he asked potential jurors questions pertaining to the religious beliefs and backgrounds, their social inclinations and peculiarly, their upbringing, implicitly determing their suitability for jury-work and also categorically explicitly confirming their admissibility to the trial !

On the other hand, the media clearly reported that the accused’s pornography was so wild and outlandish that it would make Playboy Magazine look acceptable. But even with the legal defense team’s bold and determined efforts to get their client acquitted, fools have some smarts, as the saying goes, and sure enough, the accused was convicted. But what absolutely fascinated me the most during the entire affair was the process by which the defense attorney questioned and presented his arguments.

The defense lawyer would look right into the eyes of a prosecution witnesses and ask the following questions, "Sir (or Ma’am), have you ever been into an art gallery?" "Yes."

"Have you ever paid to go into an art gallery?" The reply, "Yes."

"Have you ever paid to go into an art gallery where there are paintings by the great masters?" "Yes."

"Have you ever paid to go into an art gallery where there are paintings by the great masters of unclothed people?" And of course the reply was firm, "Yes," amid lots of silence, hesitation and ambiguity.

"Could you please tell this jury, why you call that art and call my client’s stuff pornography?"

Surely, how does one respond to that??? Truth be told, the defense attorney had the prosecution witness every time, but do you see that clearly yet indistinctly, he (the defense attorney) opened up two worldviews on the pretext of cross-examination but subsequently, he attacked a presumption, still under the pretext of legally defending his client's rights and peculiarly, in a court of law? Do you see the “nerve” touched by this lawyer when given the provisions to do so through a relativist and secularized platform?

Now to an example of how I think I might have answered the defense attorney's last question, from a contrapositive view - the philosophical perspective. When Michelangelo for the first time started to paint unclothed people, his teacher looked at him hard and surprised and inquired why he was doing it. Do you know what he said? "'I want to see man, as God sees man!'"

And his teacher replied, "'But Michel, you are not God!'"

Now I want to make it plain right here that I am not purporting to intimate or champion the argument that religious theory ought to dominate culture. No, not at all! You see I am awfully aware that when religious theory has dominated culture, it has had an awfully disastrous history, so I am not arguing for that. My beef is that secularization has come to the theoretical conclusion that an idea cannot be introduced in social debate if it is connected to a larger worldview. That way, the idea is by the fact itself dismissed and it ultimately takes its deepest toll where you and I live, with questions that surpassingly stalk our minds (such as the ones asked during the trial I discussed above)!

Therefore, Njoki Ndungu’s motion is not Sturgeon’s Law or some mere canard, and neither do you - a postmodernist flippant hold any moral grounds to question or even air your dogmatic views, based of course on your professional perspective. Besides, since when was a mere lawyer arrogated the role of sealer and peculiarly, who by? You should countermand those postmodernist tendencies and thoughts to avoid absolute damage in the future. Also, just so that you know, that "keep-it-real" approach you seem to beautifully employ in your analyses here is based on relativism of ethics. Just in case you are horribly misinformed, in reality, neutrality is plainly and purely a wonderful illusion..................ati "the critics who oppose the draft for other reasons need not be taken seriously".....................Ugh! How noisome!

Halafu angalia right here: www.dur.ac.uk/martin.ward/gkc/books/11505-h.htm#THE_ERROR_OF_IMPARTIALITY, the attentive carefulness of a certain esteemed Gentleman, while examining questions of moral issues, reason, meaning and their arraignment with respect to the law. As you will see, there’s no space given for pleaders like yourself to be counterproductive! In other words, law does not equate to morality and neither does knowing the law make you moral or even morally capable of questioning reason and morality!

Moral issues are not legal issues that you can simply take to court to debate or even debate within the paradigm of law as you know it! It is because of such types of reasoning and excuses that society is in such a philosophical mess. I suggest you leave those issues out of the beauteous legal realm and with the masses, where they belong.

Maina

[ker7emmo]

Alex, I have written ( badly ) a post on Nation remarkably similar to yours here.

[aeichener]

Emmo: I don't see it yet. I found one contribution in a thread with a subject header about rapists etc., but I wonder whether this is the one you meant.

A.

[aeichener]

I got the hopefully latest draft version today through a legal connection (not of course through NN and her "partners in crime", who try their best to keep all details secret). It has seventy pages now, and changes are visible. Whether and inhowfar the mentioned atrocities have been mended, I will have to study now.

240 seconds later: no, they have not. Not in some of the most crucial and most glaring provisions. Some things have even been worsened. Incredible.

Alexander

[fanyamambo]

Alexander would you PLEASE be specific for crying out loud

[aeichener]

There is ample reason "for crying out loud"; indeed.

One of the most specific points is the wanton and callous criminalization of nearly the entire Kenyan youth. Now you cannot really jail 10 million people, not even the British managed in the aforementioned heydays of manjeneti, so basically the law will be selectively applied at whimsy to a few poor or be used to settle personal feuds.

A second point is that the law strives very hard to ensure that victims of gang rape do NOT survive their ordeal (as they often do today).

A third point is that the law not only strives to criminalize all Kenyan juveniles (and many young adults) for consensual sex, but it also criminalizes conscientious and concerned parents. You have taught your children sexual education? You have installed in them the rule "never without a condom"? You have - discreetly but conspicuously - provided access to a pack of condoms when you felt that your daughter or your son was going out and it was "meant in earnest"? BLAM - so you are in for 5 years of prison, minimum sentencing. For being a careful and circumspect mother (or father).

Your 18-year old daughter is on an au pair stay in Denmark, and has happily fallen in love with a nice and respectful young guy there, who himself is almost 18 years old? The two love birds find together in bed? When she naively arrives back in Kenya, she'll be arrested on the spot, and must (mandatorily) be sentenced to not less than 15 years of prison.
For what offence? For the offence of love.

There are dozens of provisions like these in the draft bill. Not just a minor mistake here and a wrong reference there, which could be quickly mended. The entire law is deeply, hideously, ignominously perverted. It does NOT protect children and youngsters, as it lyingly claims. On the contrary, it intentionally PERSECUTES them. Not a single case of rape or sexual abuse more will be prosecuted if the law would be passed. But thousands of women and girls (and some boys too) who hitherto survived, will be murdered (very reasonably so, it's the only rational thing to do for the perpetrators). And so on and so on. Virtually every single page of this 70-pages draft breathes a brutality and a callousness that makes your average estate rapist appear a kind and gentle creature, in comparison.

Alexander

[ker7emmo]

It would also be a crime to sell Spice, yes Spice the magazine or Playboy,or Penthouse or even to allow people to check out porn on your computers if you own an internet cafe. Nude sculpture? It had better be ancient.

Njoki Ndung'u needs a library; or an urgent diffusion of some common sense.

There was a report in the Standard circa 1998 claiming that 85% of the children in rural Kenya had had sex, consensual as it may have been before their 16th birthday,most of it undoubtedly with other curious children. The implications ,if Njoki's carelessness is to be visited on them, would create chaos and worsen already complicated situations. That the bill even in its preamble seeks to tie magistrates hands by denying them the opportunity to consider each case on its merits,promises to deny justice and criminalise what can only be defined as natural.

Have book-thumping and intolerant religion started a foray into Kenyan politics? Couched in Messianic tones, all the commentary I have seen on this bill thus far neglects to mention anything concrete,instead revelling in the exigency of its passing, and pre-emptively branding a misogynist anyone who dares question it.

The danger with such 'public interest' bills is that most people do not pay them much attention,neither the drafters nor the public. That it sets out to right great injustice denies it the scrutiny and questioning that it properly deserves if it is not to work against the interest of the very people it is supposed to protect.

The Attorney General's office has proved unsurpassed in its mediocrity, even as the general IQ of our Parliament bravely assails the 100 waterline. Help must come from elsewhere.

[aeichener]

To add to Emmo's points:

1. Legalizing slavery would have better intentions and consequences than this draft. Just look at what it really says:
Punishing consensual (even loving) mutual sex between juveniles far harder (15 years) than life-wrecking mutilation (fine of 100,000 KSh) is perverted to the extreme.

2. Incidentally, the former provisions (definitions) as to marital rape have simply been erased in the latest draft. *Poof* - and away they went. It is not important for Njoki Ndung'u to REALLY protect women, mind you.

Alexander

[fanyamambo]

Emmo and Alexander, your alarmist propaganda leaves a bad taste in mouth and I wish the conversation would be more constructive. However you are not the first we have encountered. Although you still are not being as specific as you can be, a good tactic, I gather that your issues are:

1. That the section on defilement makes an offence any acts involving penetration with children

This has been raised before, considered and reconsidered. The challenge comes in several forms, mainly that there is a problem of phrasing, and finding ways to ensure that a bill addresses the views of the majority. For instance saying that such an act amounts to defilement, EXCEPT when there is a consensual agreement between minors raises so many questions, possible public uproar and an almost guaranteed failure of the Bill to pass into law. More about the issue of the 'accceptability' of bill later because that addresses a number of your other concerns

2. Pornography
I hate pornography (and no I am hardly a bible thumper) and so I am actually in support of the section. Although I understand well the arguments on freedoms etc (so we don't need to go into it), it has been felt by many stakeholders particularly in the children's rights sector, that the increase in pornographic material, expression and exploitation of children therein is a direct relative of sexual violence. Although it may seem "prudish", conservative and right wing at a glance there are deeper reasons relating to vulnerable persons behind it.

3. Light sentence for forced circumcision of females and a lack of a provision on rape in marriage
(related to this now famous 'acceptability' problem)

As you know a bill goes through several drafting stages. Stakeholders are invited to give views to the drafting team or house committee under whose docket a bill lies. Proposers of bills (in this case Njoki Ndung'u who as we all know is one of those rabid feminists out to castrate innocent men) also tend to consult various parties, opinion leaders and institutions to ensure that the bill is acceptable enough to both the sitting members of parliament and their constituents. When it comes to a particularly sensitive and emotive bill like this one on sexual offences there are varying opinions and concerns. For a proposing MP and the team behind him or her, an unavoidable situation of compromise will arise.

So in relation to rape in marriage, the provision was removed because of opposition to it for cultural and religious reasons. MANY groups of all shapes and sizes, including our good old MPS felt strongly that rape in marriage is not possible. The fact that a woman agrees to marry a man signs away her right to say no to having sex with him at any time and at any place - this is what is popularly referred to as conjugal rights. After a long and hard battle (not 'poof!), that provision was removed.

The light sentence for forced circumcision also relates to the matter above. This of course could not be completely scrapped as it is already banned by the laws in Kenya including the Children's Act. In fact the sentences throughout the bill are indeed VERY light in the eyes of many. Personally I find comfort only in the fact that they are minimum sentences and could in fact translate to imprisonment for life.

Now Alexander, I will tell you why I don't appreciate the tone this thread has taken from the beginning. As pointed out by others it failed to be specific - this I think we are getting to slowly but surely. I am not asking you to be specific so that I can defend the Bill, but so as an active player in this process I am able to draw out some of the public concerns on this issue, and raise them for possible ammendment. I am looking for a constructive process

I have already said that it is alarmist and unobjective. If anyone has a problem with Njoki Ndung'u please put that aside and see this bill as what it is. A bill that seeks to address the escalating problem of sexual violence in Kenya and the failure of our laws and systems to address it. This bill is not cast in stone and ammendments can be done, but I assure you that we cannot afford to throw out the whole bill. Many people are aware of this and working round the clock to ensure that the MPs and the public are educated about it and that it passes in a form that is most acceptable to everyone. This is genuine and please take my word for it. This is the culmination of a long hard battle.

I urge you to contact the House Committee on Administration of Justice and Constitutional Affairs if you have real concerns you wish to bring up. Remember I said that ammendments can also be made on the floor of the house and your ticket to this is your Member of Parliament. There is also a civil society task force on the bill which I can put you in touch with, or you can contact the Centre for Rights Education and Awareness, or the Federation of Women Lawyers in Kenya, or the Coalition on Violence against Women who are the convenors of the task force.

ps. I was joking on the rabid feminist

[aeichener]

The bill does address very few problems (e.g. the evidence provisions, about the only ones that are legally halfway well casted; and the well-intentioned but badly executed "vulnerable witness" provisions). The rest intends to make a bad situation much, much WORSE, and the bill must therefore at all means be stopped in its tracks.

What is then needed, in a second step, is a well-drafted completely new bill, that finally addresses the issues and offers equitable and practical solutions. That is not soooooo difficult, once that really knowledgeable people sit down to draft a new bill.

I expect that some women will also speak out against the draft soon. Those of my female friends (all of them fairly staunchly feminist, but - contrary to N.N. - not rabid but intelligent) who have seen the actual draft were shocked by the ignominy of its true contents, and how much cunningly duped and hoodwinked they had been about what this mongrel *really* contains.

Once again: the proposed law criminalizes the *entire* Kenyan youth and young adults for consensual sex (and even for mere kissing and fondling without penetration), it criminalizes all poor people who have to live, love and die in cramped conditions, and it also criminalizes conscientious and responsible parents.

This bill *MUST* be refuted.

Alexander

[roughrider]

I am an ardent supporter of stronger legislation to deal with the offence of rape especially when it concerns children. It is on this basis that my first instinct has always been to support Njoki Ndungu’s bill. However after reflecting a bit I am not so sure if this bill addresses the problem sufficiently:

We need to be carefully about legal sanctions that may interfere with social, cultural and religious processes. Recall that the draft constitution failed not by a small part because of certain provisions that were deemed culturally, religiously and socially repugnant. Where entire societies practice what others think are sexual offences the answer is probably not stringent law but continous education and transformation.

The bill as Alexander has correctly observed, might make it imperative that rapists kill their victims. Can this possibility be discussed and resolved? Did someone say deterrence? Now I do not think that the threat of heavier punishment is a deterrent to a rapist. The old adage that prevention is better than cure comes to mind. I would like to see as much energy and focus spent on discussing ways of preventing sexual offences as we have spent in formulating punishment.

The suggestion that this law is based on western definition of sex and sexual relations is troubling enough. How do Africans define rape, for instance? How did we deal with it and was it a common occurrence in African society?

Can we use a revised version of this law to deal with homosexuality as well as abortion? We clearly don't need those in our society! It surprises me that Njoki Ndungu who supports abortion - and perhaps homosexuality - is against rape. Aren't they all hallmarks of sexual freedom?

It is probably irresponsible to use the current – and legitimate - emotional outpourings in the media to enact a law that some people have fundamental and perhaps legitimate differences with; having said that I think this law will pass nonetheless.

[ker7wasswa]

FanyaMambo,
I will start by apologising for the bad taste in your mouth; it shows in your post. There isn't I don't think anything alarmist about either my posts or Alex's. I am afraid I was denied entrance into that school.

As you rightly point out there is a lot of poor phrasing in the Bill, and in drawing up law you will no doubt appreciate there is little room for minutiae. The little points are hardly ever trivial.

This law lest we forget is supposed to protect the vulnerable. Laws, especially new ones are also meant to be implemented. Laws that are passed to reside in the books for eternity are both useless to the public good and susceptible to abuse.

Doubtless many countries around the world have such Age of Consent laws in their books, most of them perhaps as ancient as the states themselves. However there has been a constant progressive motion over the last thirty odd years towards laws more respectful of the privacy and other civil rights of the youth, and of their ability to make decisions for themselves. These new laws do not anywhere rob parents of their role in educating their children about sex, and encouraging them only to have such relations when both responsible and ready.

The trouble with most law about sex is that it compels us to the crossroads, especially in a country like ours, of Victorian prudery and ‘rabid feminism’. There is a trap there to be over-zealous, and in the settling of the dust after compromises are made, unrepresented groups like teenagers are short changed.

I do not believe the prevailing mood among wananchi would support the incarceration for up to 15 years of young people for having sex. I am sure a mother angry at her daughter for having sex, may contemplate (if she is slightly mad) having the male ‘perp’ condemned to jail for 15 years (yes, that is the minimum sentence), but the same for her daughter? It must be obvious that this law will not be implemented at any time other than to lock up those who have offended the mighty.

You have not considered either that a girl who thought her boyfriend would end up in jail, would be wary of seeking counsel from her parents, pastor, teacher, doctor, etc about any matters related to her relationship with him. Or if she did, let's say after she got pregnant, would be compelled to save her own skin by claiming she was raped.

Instead of criminalising maybe 60% of all our young people, we should be seeking to demystify sex, especially as we are beset with HIV/AIDS. Do we need more social services or more prisons? How many very healthy Kenyans are there who had sex before they were 16? Is all sex by persons under the age of consent really abusive?
What deterrence, protection, restitution, rehabilitation, or growth for anyone involved is Njoki proffering here?

Like Alex asks above, what are the ramifications for a mother who provides condoms and advice on sex to her daughter,’facilitating sex’ as per Clause 12, what of VCT centres or health ministry officials?

The Clause on pornography, 16, is titled Child Pornography. The language in the main text though, goes beyond that. It must either be re-titled or the language set right. Child porn is wrong, it is our business to stop it, any other porn is not the business of the State.

sells, lets to hire, distributes, publicly exhibits or
in any manner put into circulation, or for
purposes of sale, hire, distribution, public
exhibition or circulation, makes, produces or has
in his or her possession any obscene book,
pamphlet, paper, drawing, painting,
representation or figure or any other obscene
object whatsoever;

Ridiculous.

On my part I think it is just the phrasing that was poorly done, otherwise Njoki Ndung’u would be an idiot, which I do not think she is.
We do not have enough prisons to hold all the Kenyans who would fall foul of these laws,indeed it is not even likely that the Republic would bother with most such prosecutions. The very bill allows for marriages by minors in some specific communities, an act which in itself betrays that even the bills sponsors do not believe all sex between minors is abusive.

[aeichener]

As you have said very rightly, Emmo, this draft does not protect those whose are weak and vulnerable - it PERSECUTES them. Especially them.

Alexander

[fanyamambo]

Alexander let us agree to disagree on this matter. By the way what is a feminist by your definition. Remember I said I was KIDDING about the rabid part.

Roughrider, in what ways can the law focus on preventing crimes? Do any of our other laws do this? Remember that there is A LOT of work going on at all levels towards preventing such crimes, women and men have dedicated their lives to doing so but have continuously been frustrated by the lack of working structures to investigate them, protect the victim, and ensure that justice is done. You are an African, how do YOU define rape? It astounds me that you consider rape a hallmark of sexual freedom. Why should a bill on sexual offences contain any laws on homosexuality?

Ker, the drafting error in the section on child pornography has already been noted by the house committee. It is supposed to state 'child' or 'in respect to a child'

[aeichener]

There are two different aims now; they stand in hierarchy (one is the precondition for the other), but they must be seen concurrently.

One is to stop and entirely reject the present draft bill, at all means. It is so intrinsically bad, in so many provisions, that it simply cannot be amended and improved. How can you "improve" a pro-slavery law? How amend the Torture Act ?

The other issue is that a thorough reworking and revamping of the laws relating to sexuality and sexual offences is urgently needed. Revamping does not mean to include "drawing, quartering and burning on the stake" in the criminal code. Abstract sentences do not deter.
It means that issues of sexuality, marriage, child support, reproductive rights, genital mutilation, are all intimately linked. What is needed is a holistic approach. That need not prevent us from offering preliminary quick relief where possible and feasible (i.e. an isolated alteration of the laws on evidence, as the Kenyan judiciary has already begon on its own), but it makes clear that one cannot on one hand purport to criminalize and jail the entire Kenyan juvenile population, and on the other hand lackadaisically condone marital rape and still sentence thousands of women and girls to a terrible death via the present criminalization of abortion. Rarely has legislative hypocrisy and incompetence been so outspoken and to visible as is the case in this draft. Every feminist must indeed reject this draft - it is a treason of all that women activists in Kenya have toiled and suffered and laboured for in the last 25 years.

Alexander

[roughrider]

fanyamambo said:

Roughrider, in what ways can the law focus on preventing crimes? Do any of our other laws do this? Remember that there is A LOT of work going on at all levels towards preventing such crimes, women and men have dedicated their lives to doing so but have continuously been frustrated by the lack of working structures to investigate them, protect the victim, and ensure that justice is done. You are an African, how do YOU define rape? It astounds me that you consider rape a hallmark of sexual freedom. Why should a bill on sexual offences contain any laws on homosexuality?

Fanyamambo – I support a law on sexual offences so I suspect we are on the same side re this... but i keep an open mind.

I said I did not understand how someone can be opposed to rape and support abortion and homosexuality at the same time. In my view, all three are sexual offences and can, hopefully, be criminalized in the same bill. But if you support homosexuality or abortion because of 'freedom' then you should bite the bullet and support rape. It is just honesty.

Marital rape for example is something alien in African societies…. These are the definitional issues I have in mind when I talk about the differences in our definition of sex and how this bill might be premised on western views on sexuality. I think even kissing is un-African…

Last – we need to recognize that there are root causes of sexual offences and it is to those root causes that preventive measures may be targeted. Fighting pornography, indecent dressing, drug abuse are only three such measures.

Thanks.

[aeichener]

When addressing the concept of "marital rape" (following my tracks - but I had chastized the draft for still condoning it), Roughrider indeed is asking an important and complex question, that should be taken serious.

But I doubt anybody will have understood it. Certainly not Fanyamambo.

Alexander

[emmo]

Really, Alex? Well I certainly do not see it.

The whole African banner is often the stigmata of ignoramuses in defence of unjust practices in the name of culture, especially practices that seem endemic but in no way exclusive to sub-saharan Africa.

Homosexuality is in no way un-African and neither is rape, African. Victorian prudery and racism are what we have to thank for such ideas, not the illustrious ways of our forefathers.

Marital rape may have been unknown in our traditional societies because women would hardly ever countenance rejecting their husbands' advances. In the modern world though, I do not see how any law that aims to defend women from sexual aggression can differentiate premised on context. Have we enshrined in our laws, provisions allowing for the theft of family property? Can a woman dispose of her husband's property as she pleases and claim a right so to do based on their marriage? Why does this right to sexual violence in marriage not extend to wife beating? It still is the same body that is being violated is it not?

RoughRider,
Is your fixation with genitalia interfering with your eyesight?( Finally a double, maybe triple entendre.) How is abortion a sexual offence? Is contracting HIV also a sexual offence?
here's a rough ride through basic human rights.the Liberty Principle.
Each person should be bound to observe a certain line of conduct towards the rest. This conduct consists......in not injuring the interests of others; or rather certain interests which, either by express legal provision or by tacit understanding,ought to be considered as rights.

Further, on Utilitaritanism,
To have a right, then is I conceive, to have something which society ought to defend me in the possession of.If the objector goes on to ask why it ought? I can give to him no other reason than general utility,

This general utility Mill describes in his definition of Utilitarianism as what 'holds that actions are right in proportion as they tend to promote happiness,wrong as they tend to produce the reverse of happiness. By happiness is intended pleasure and the absence of pain;by unhappiness pain and the privation of pleasure.'

I have trouble seeing how anyone should be deprived of their happiness by a homosexual union, absent of course the occurrence of one losing one's lover to such a union.

[aeichener]

Emmo: oh, you do see the question, as your later exhortation shows... you just pretend naivité. ;-)

Seriously, the concept of what is called "marital rape" is well understood: it means a married partner forcing himself upon his spouse (the other way around is of course also possible, but much rarer). Sexual violence is sexual violence, no matter whether it takes place inside or outside of marriage, and *especially* marital rape is frequently used as a tool of submission, degradation, humilation; because of its quality of repeated abuse and since it is often coupled with other abuses, its effects on mind and soul are often even worse than a one-time encounter of forced sex with a foreigner.

On the other hand, many legal systems from the outset define rape as forced intercourse outside a legal union. From a purely positivist standpoint, marital sexual violence can then well be punishable, but not technically as "rape", quoad verbum legis. But that does not mean that it could not be included into the criminal code, and be made an offence. If Njoki Ndung'u and her minions had not been so terribly stupid and legally inept, they would have been able to save the intended provisions against marital rape, and to protect women instead of continuing to see them victimized. But protection is not the aim of this law, as every look into any random provision there shows.

Here is another brutal stupidity: did you know that the law sets to outlaw any combination of anti-inhibitors (including alcohol) and sexuality? So, share a roll of bhang with your girlfriend before rolling with her (couldn't resist the pun), and you are in for 10 years miminum. Or for the ladies: prepare a delicious dinner for your boyfriend (and soon-to-be fiancé), offer him a Tusker and a second one, in order to finally seduce the shy young man, and you are in for 10 years minimum. (Section 29 of the draft bill)

That's the concept of a wanton terror law. In combination with already criminalizing virtually all of Kenya's teenagers for consensual sex. What an ogrish mind.

Alexander

[fanyamambo]

Alexander, you are really too much. The law addresses substances that are stupefying and overpowering. Us stupid minions feel that there is an increasing problem with 'rape drugs' being slipped into drinks, getting girls drunk so that you can bang them. Is the administering of alcohol and drugs to make someone STUPEFIED and OVERPOWERED so that you can have sex with them seduction??

I'm starting to think that you are not really alive to this problem, but rather occupied by droning on about how innocent youth will be criminalized. This is a very evasive. You offer NO SOLUTIONS. You attack people who are making some attempt at addressing the problem, calling them stupid, inept and unable to understand other people's questions. What on earth are you about? A solution is not saying reject the bill and get others to draft it. Based on what ? Give real solutions e.g should the bill be rejected a new draft should have a clause on defilement should read such and such.

By the way don't you think the draft protects women who are raped in marriage? Not that I am convinced you have any genuine concern on the issue as a whole at all.

Emmo - co sign on most if not all your points

[aeichener]

fanyamambo said:

Alexander, you are really too much. The law addresses substances that are stupefying and overpowering. Us stupid minions feel that there is an increasing problem with 'rape drugs' being slipped into drinks, getting girls drunk so that you can bang them. Is the administering of alcohol and drugs to make someone STUPEFIED and OVERPOWERED so that you can have sex with them seduction??

Idiocy dancing on the table. But I suspect it's rather intentional malice.

The abuse of somebody drugged or stupefied is ALREADY punishable as rape, as it should be. Due to absence of consent, it would anyhow be punishable as rape to the full extent of the law under the new bill, too, according to Section 3 par. 5) d). One does not in the least bit need such a provision as section 29 to achieve this goal.

The only intent of section 29 is to criminalize totally legal and consensual behaviour, in the same way as "your" law intends to criminalize the entirety of consensual juvenile sex, and to criminalize conscientious and responsible parents, who are trying to ensure that their youngsters do not impregnate or infect others or get pregnant or HIV-infected.

The draft also makes it a heavy crime for the proprietor of a safari lodge to simply rent a banda to a young foreign tourist and his (or her) 17-year old fiancé/e. And so on and so on...

That is the text !

By the way don't you think the draft protects women who are raped in marriage?

No. It has erased the previous reasonable provision which stipulated that marriage is not a valid defence against rape charges (very necessary not only for intra-relationship rapes, but also and even more for partners living separated already, for women having fled an abusive relationship etc.). It has gone back to accepting marital rape, clearly showing that the protection of victims is not its real concern. Same with juveniles. This draft does NOT protect them - it brutally persecutes them.

Alexander

[emmo]

Fanyamambo,
What's this co-signing business? I am not sure I am able to do it. The italicised manenos were from John Stuart Mill. I am assuming that everyone is at least able to recognise the name Mill, the concepts Liberty Principle, and Utilitarianism. Ama its Dunceville?

Fanyamambo,
It is you who seems to live in another world. Seeing as you hate porn, this is not such a stretch of the imagination, but perhaps you do not know that many people use alcohol or drugs to lower their inhibitions,especially before casual sex.

[fanyamambo]

Oh Emmo - who was talking about the italicized manenos. Make sure you don't fall off that horse. It's a long way down

My stand on pornography bother you?

Alexander you have caught me out. The truth is, I want every single youth to go to jail. This serves my purpose of having a youth free world. Furthermore, I want all women and girls and little boys to be raped, defiled and killed. This I will achieve by prescribing heavy sentences for rapists, defilers and child pornographers that will make them angry and vengeful. Indeed I want wives to be raped daily by their husbands. This is the African way. Happy?

We really are going round and round in circles. Lobby your MP to vote against it. I am tired. Generally.

[aeichener]

fanyamambo said:

Alexander you have caught me out. The truth is, I want every single youth to go to jail. This serves my purpose of having a youth free world. Furthermore, I want all women and girls and little boys to be raped, defiled and killed. This I will achieve by prescribing heavy sentences for rapists, defilers and child pornographers that will make them angry and vengeful. Indeed I want wives to be raped daily by their husbands. This is the African way. Happy?

Nah, I am not happy about this stance. Maybe you are.
Exactly that is your position, Fanyamambo; exactly that is what you work for and try to achieve. You summed it up admirably and clearly.

As a minuscule and superfluous explanation: if murder and rape (or the defilement of real, small children) are punished in the same way, namely with life sentences - and Kenya has not had any executions since 1987, the dealth penalty is no longer applied, life imprisonment is maximum - then all perpetrators will have the best and compelling reason to kill their victim, what they hitherto mostly did not do.

Because the punishment in case of being apprehended would the same anyhow, and the chance to be caught is drastically lower if there is no witness. That is what you have set out to achieve now. Feel proud.

Alexander

[emmo]

FanyaMambo,
I am glad you finally came out. Your position on child pornography is indeed laudable, the rest is plain ridiculous, but not surprising coming from some Demiurge hugging hater of porn.

An empirical approach would serve us better than this endless theorizing. Consider the difference between both frequency and extremity of felony in the USA and in OECD Europe, or even Canada. Consider the social and economic extremities in the USA. Oh, and the power of the Church and its influence in law-making in America.

That may be a very tiring exercise,so you needn't bother.

P.S, Have you ever contemplated the similarities between God and an abusive spouse? It is for that very reason that the movement for the liberation of women must be secular and based on rationalism and experience than on a need to mete barbaric punishment.