Silence is not consent: Here's what you need to know about law and boundaries
Egerton University students mark the institution’s 20th Gender Awareness Day on Njoro Campus on October 18, 2021.
What you need to know:
- Kenyan law invalidates consent from minors, intoxicated persons, or where force and deception are used.
- Universities must promote consent education to reduce sexual violence and foster respectful, informed relationships.
Dear Vivian,
I am a student at a local university organising a gender-based violence awareness event. Recently, university students debated what consent means and the legal perspective. Please, help elaborate as we plan the event.
Marjorie,
Tuk University
Dear Marjorie,
Under Kenyan law, consent in the context of sexual activity must be clear, voluntary, informed, and given by someone with the legal and mental capacity to do so. It is not enough for someone to be silent or passive; the law recognises that true consent must be actively and willingly expressed.
This understanding is drawn from the Sexual Offences Act, which, while not defining consent in precise terms, outlines the situations in which consent is not valid such as when it is obtained through force, threats, intimidation, deception, or when the person is unable to understand or appreciate the nature of the act due to intoxication, mental incapacity, or being asleep or unconscious.
Importantly, the law recognises that consent can be withdrawn at any point before or during a sexual act. The moment a party revokes consent, any continuation of the act may amount to a criminal offence. Courts have reinforced this position by emphasising that lack of resistance is not the same as consent, and once consent is withdrawn, it must be respected.
The question of who can legally give consent is also critical. Kenyan law stipulates that a person under the age of 18 cannot give valid consent to sexual activity, regardless of whether they agree to it or not. In such cases, any sexual engagement is classified as defilement. Similarly, a person who is mentally impaired or under the influence of drugs or alcohol to the extent that they cannot fully comprehend the nature of the act is considered incapable of giving valid consent.
In addition, while not explicitly stated in the law, Kenyan courts have begun to acknowledge that marriage does not amount to automatic or permanent consent. Every individual, including a spouse, has the right to say no, and forced sex within marriage can amount to sexual assault.
Consent obtained through misrepresentation or deception is also invalid. For instance, if someone impersonates another person to obtain consent, or lies about the nature of the act or the context in which it is being performed, that consent is not considered legally valid.
Beyond specific provisions of the law, the Constitution offers broader protections relevant to consent. Every person has the right to dignity and freedom from cruel, inhuman, or degrading treatment, and these principles are often invoked in cases involving gender-based violence and sexual assault.
Consent remains one of the most critical yet misunderstood aspects in conversations around gender-based violence, especially in university settings where many young adults are navigating issues of bodily autonomy, legal responsibility, and sexual boundaries. For students leading awareness of GBV, understanding these legal principles is essential.
Vivian
The writer is an advocate of the High Court of Kenya and award-winning civil society lawyer ([email protected]).
