2189 THE SEXUAL OFFENCES (AMENDMENT) BILL, 2023 A Bill for AN ACT of Parliament to amend the Sexual Offences Act, 2006 ENACTED by the Parliament of Kenya, as follows— 1. This Act may be cited as the Sexual Offences (Amendment) Act, 2023. 2. Section 2 of the Sexual Offences Act, 2006, in this Act referred to as "the principal Act", is amended by deleting the definition "Minister" and substituting the following new definition in its proper alphabetical sequence "Cabinet Secretary" means the Cabinet Secretary for the time being responsible for matters relating to legal affairs; 3. Section 26 of the principal Act is amended in subsection (7) by deleting the word "Minister" appearing in paragraph (b) and substituting therefor the words, "Cabinet Secretary". 4, Section 35 of the principal Act is amended — (a) in subsection (3) by deleting the word, "Minister" appearing immediately after the expression "subsection (2)° and substituting therefor the words "Cabinet Secretary". (b) in subsection (5) by deleting the word "Minister" appearing immediately after the words by the" and substituting therefor the words "Cabinet Secretary". 5, Section 36 of the principal Act is amended— (a) in subsection (4) by deleting the word, "Minister" appearing immedi: after the words "determined by the" and substituting therefor the words inet Secretary". (b) in subsection (7) by deleting the word, "Minister" therefor the words, Cabinet Socrsary". Amendment of sectlon 2 of Mio. 3 of 2000.
The Sexual Offences (Amendment) Bill, 2023 MEMORANDUM OF OBJECTS AND REASONS Statement of objects and reasons for the Bill The principal object of this Bill is to amend the Sexual Offences Act, 2006 to provide for promotion of national public awareness of sexual offences. Further, the Bill mandates the Cabinet Secretary responsible for education to establish programs to safeguard, protect, and promote the right to education of victims of sexual offences, including victims of teenage pregnancies. Finally, the Bill provides for the definition of a cabinet secretary so as to align the Act with the Constitution. Clause 1 the Bill is of the Short Title. Clause 2 of the Bill proposes a definition of the Cabinet Secretary so as to align it with the Constitution. Clause 3 to Clause 6 of the Bill substitutes the term "Minister" with "Cabinet Secretary" to align the Act with the Constitution. Clause 7 of the Bill seeks to introduce a new section 46A provide for promotion of national public awareness of sexual offences. Further, the Bill requires the Cabinet Secretary Cabinet responsible for education to establish programs to safeguard, protect, and promote the right to education of victims of sexual offences, including victims of teenage pregnancies. Clause 8 of the Bill substitutes the term "Minister" with "Cabinet Secretary" to align the Act with the Constitution, Statement on the delegation of legislative powers and limitation of This Bill does not delegate legislative power or limit any fundamental rights or freedoms. Indication of whether the Bill concerns county governments This Bill does not affect the functions of the county governments and is therefore a Bill not concerning counties. Statement as to whether the Bill is a money Bill within the meaning of 114 Constitution Article of the The enactment of this Bill shall not occasion additional expenditure DORIS DONY A ABURI, Member of Parliament. of public funds.
2192 The Secual (Amendment) 2023 Offences Bill, Section 2 of No 3 of 2006 that is proposed to be amended— Interpretation 2. (1) In this Act, unless the context otherwise requires - "act which causes penetration" means an act contemplated under this Act; "child" has the meaning assigned thereto in the Children Act No. 8 of 2001; "complainant" means the Republic or the alleged victim of a sexual offence and in the case of a child or a person with mental disabilities, includes a person who lodges a complaint on behalf of the alleged victim where the victim is unable or inhibited from lodging and following up a complaint of sexual abuse; "consent" has the meaning assigned to it under this Act; "DNA" means deoxyribonucleic acid, the genetic code unique to every living organism, including human beings and "DNA Test" shall be construed accordingly: "gang" means two or more persons, "genital organs" includes the whole or part of male or female genital organs and for purposes of this Act includes the anus; "gang rape" deleted by Act No. 7 of 2007, Sch.; "HIV" means the Human Immunodefiency Virus which causes AIDS; "HIV test" means the test which determines whether a person is infected with HIV; "indecent act" means any unlawful intentional act which causes— (a) any contact between any part of the body of a person with the genital organs, breasts or buttocks of another, but does not include an act that causes penetration; (b) exposure or display of any pornographic material to any person against his or her will; his "intermediary" means a person authorized by a court, on account of or her expertise or experience, to give evidence on behalf of a vulnerable witness and may include a parent, relative, psychologist, counselor, guardian, children's officer or social worker,
The Sexual Offences (Amendment) Bill, 2023 2193 "law enforcement officer" means any person whose duties involve law enforcement and includes but is not limited to a police officer as defined under the Police Act; "nerson with mental disabilities" means a person affected by any mental disability irrespective of its cause, whether temporary or permanent, and for purposes of this Act includes a person affected by such mental disability to the extent that he or she, at the time of the alleged commission of the offence in question, was— (a) unable to appreciate the nature and reasonably foreseeable consequences of any act described under this Act, (b) able to appreciate the nature and reasonably foreseeable consequences of such an act but unable to act in accordance with that appreciation; (c) unable to resist the commission of any such act; or (d) unable to communicate his or her unwillingness to participate in any such act; "Minister" means the Minister for the time being responsible for matters relating to legal affairs and public prosecutions; "penetration" means the partial or complete insertion of the genital organs of a person into the genital organs of another person; "sexual offence" means any offence prescribed in this Act; and "vulnerable person" means a child, a person with mental disabilities or an elderly person and "vulnerable witness" shall be construed accordingly. Section 26 of No 3 of 2006 that is proposed to be amended— Deliberate transmission of HIV or any other life threatening sexually transmitted disease 26. (1) Any person who, having actual knowledge that he or she is infected with HIV or any other life threatening sexually transmitted disease intentionally, knowingly an willfully does anything or permits the doing of anything which he or she knows or ought to reasonably know — (a) will infect another person with HIV or any other life threatening sexually transmitted disease; (b) is likely to lead to another person being infected with HI'V or any other life threatening sexually transmitted disease;
2194 The Sexual Offences (Amendment) Bill, 2023 (c) will infect another person with any other sexually transmitted disease, shall be guilty of an offence, whether or not he or she is married to that other person, and shall be liable upon conviction to imprisonment for a term of not less fifteen years but which may be for life. (2) Notwithstanding the provisions of any other law, where a person is charged with committing an offence under this section, the court may direct that an appropriate sample or samples be taken from the accused person, such place and subject to such conditions as the court may direct, for the purpose of ascertaining whether or not he or she is infected with HIV or any other life threatening sexually transmitted disease. (3) The sample or samples taken from an accused person in terms of subsection (2) shall be stored at an appropriate place until finalization of the trial. (4) The court shall, where the accused person is convicted, order that the sample or samples be tested for HIV or any other life threatening sexually transmitted disease and where the accused person is acquitted, order that the sample or samples be destroyed. (5) Where a court has given directions under subsection (4), any medical practitioner or designated person shall, if so requested in writing by a police officer above the rank of a constable, take an appropriate sample or samples from the accused person concerned; (6) An appropriate sample or samples taken in terms of subsection j= (a) shall consist of blood, urine or other tissue or substance as may be determined by the medical practitioner or designated person concerned, in such quantity as is reasonably necessary for the purpose of determining whether or not the accused person is infected with HIV or any other life threatening sexually transmitted disease; and (b) in the case a blood or tissue sample. shall be taken from a part of the accused person's body selected by the medical practitioner or designated person concerned in accordance with accepted (7) Without prejudice to any other defence or limitation that may be available under any law, no claim shall lie and no set-off shall operate against — (a) the State;
The Sexual Offences (Amendment) Bill, 2023 (b) any Minister; or (c) any medical practitioner or designated persons, in respect of any detention, injury or loss caused by or in connection with the taking of an appropriate sample in terms of subsection (5), unless the taking was unreasonable or done in bad faith or the person who took the sample was culpably ignorant and negligent. (8) Any person who, without reasonable excuse hinders or obstructs the taking of an appropriate sample in terms of subsection (5) shall be guilty of an offence of obstructing the cause of justice and shall on conviction be liable to imprisonment for a term of not less than five years or to a fine of not less fifty thousand shillings or to both. (9) Where a person is convicted of any offence under this Act and it is proved that at the time of the commission of the offence, the convicted person was infected with HIV or any other life threatening sexually transmitted disease whether or not he or she was aware of his or her infection, notwithstanding any other sentence in this Act, he or she shall be liable upon conviction to imprisonment for a term of not less than fifteen years but which may be enhanced to imprisonment for life. (10) purposes this section— For of (a) the presence in a person's body of HIV antibodies or antigens, detected through an appropriate test or series of tests, shall be prima facie proof that the person concerned is infected with HIV; and (b) if it is proved that a person was infected with HIV after committing an offence referred to in this Act, it shall be presumed, unless the contrary is shown, that he or she was infected with HIV when the offence was committed. Section 35 of No 3 of 2006 that is proposed to be amended— Medical treatment orders 35. (1) A court shall upon conviction of a person having committed a sexual offence and if satisfied that the convicted person is dependent on or has the propensity to misuse alcohol, any drug or is suffering from any other disorder, and may benefit from treatment, grant an order for treatment or professional counseling and such an order shall be made in addition to any sentence, including a sentence of imprisonment which is not suspended.
2196 The Sexual Offences (Amendment) Bill, 2023 (2) Notwithstanding the provisions of sub-section (1), a court shall, at any time at the request of a victim of sexual offence or an intermediary, grant an order for the treatment of a victim of sexual offence. (3) Notwithstanding the provisions of subsection (2), the Minister responsible for health shall prescribe circumstances under which a victim of a sexual offence may at any time access treatment in any public hospital or institution. (4) The expenses incurred for the treatment or professional counseling of any person convicted of an offence under this section or a victim of a sexual offence as the case may be, shall be borne by the State. (5) All treatment in respect of a treatment order or professional counseling granted under this Act shall be undertaken at a public hospital or institution or any other institution approved or gazetted by the Minister responsible for health. (6) All medical records relating to treatment pursuant to subsections (1), €2), (3) and (4) shall be kept and may be used as evidence before any court with regard to any offence under this Act. Section 36 of No 3 of 2006 thar is proposed to be amended— Evidence of medical or forensic nature 36. (1) Notwithstanding the provisions of section 26 of this "Act or any other law, where a person is charged with committing an offence under this Act, the court may direct that an appropriate sample or samples be taken from the accused person, at such place and subject to such conditions as the court may direct for the purpose of forensic and other scientific testing, including a DNA test, in order to gather evidence and to ascertain Whether or not the accused person committed an offence. (2) The sample or samples taken from an accused person in terms of subsection (1) shall be stored at an appropriate place until finalization of the trial. (3) The court shall, where the accused person is convicted, order that the sample or samples be stored in a databank for dangerous sexual offenders and where the accused person is acquitted, order that the sample or samples be destroyed. (4) The dangerous sexual offenders databank referred to in subsection (3) shall be kept for such purpose and at such place and shal! contain such particulars as may be determined by the Minister. (5) Where a court has given directions under subsection (1), any medical practitioner or designated person shall, if so requested in writing
The Sexual Offences (Amendment) Bill, 2023 2197 by a police officer above the rank of a constable, take an appropriate sample or samples from the accused person concerned. (6) An appropriate sample or samples taken in terms of subsection (i) (a) shall consist of blood, urine or other tissue or substance as may be determined by the medical practitioner or designated person concerned, in such quantity as is reasonably necessary for the purpose of gathering evidence in ascertaining whether or not the accused person committed an offence or not; and (b) in the case a blood or tissue sample, shall be taken from a part of the accused person's body selected by the medical practitioner or designated person concerned in accordance with accepted medical practice. (7) Without prejudice to any other defence or limitation that may be under any law, no claim shall lie and no set-off shall operate available (b) any Minister; or (c) any medical practitioner or designated persons, in respect of any detention, injury or loss caused by or in connection with the taking of an appropriate sample in terms of subsection (5), unless the taking was unreasonable or done in bad faith or the person who took the sample was culpably ignorant and negligent. (8) Any person who, without reasonable excuse, hinders or obstructs taking of an appropriate sample: in terms of subsection (5) shall be of an offence of obstructing the course of justice and shall on be liable to imprisonment for a term of not less than five years the guilty conviction or toa fine of not less fifty thousand shillings or to both,