Defilement: The disease eating childhoods away

Sunday August 10 2014

Although several defilement cases are reported each year

Although several defilement cases are reported each year, many others go unreported, due to corruption occasionally involving buying off the parents. PHOTO BY RACHAEL MABALA  

By Yasiin Mugerwa, Julius Ocungi, Ben Jumbe, Sandra Birungi and Brenda Banura

A 17-year-old girl in Kitgum was abducted on her way to school, and repeatedly defiled by a man early this year. At first, the girl managed to escape and crossed the border into Kenya seeking safety.
Then the man, according to Ms Norah Namatovu, a lawyer at FIDA (The Uganda Association of Women Lawyers) who first narrated this story in a recent sexual violence meeting in Kampala, met with some people who eventually forced her back to Uganda.

The man repeatedly defiled Jane (not her real name) and kidnapped her for one week as the two families continued with negotiations to amicably resolve the issue. The girl managed to escape again.

This time however, she sought refuge in a nearby army barracks. She narrated her ordeal to UPDF soldiers who immediately apprehended the man and handed him over to Police.

This case is still on-going but there is hardly any support from her family.

At 17, Jane is a minor. Like any other exuberant teenage girl or boy, she had big dreams too. She wanted to become a doctor but defilement, an insidious problem in the country, shattered her dream for a better future.

Staggering numbers
Unfortunately as Ms Namatovu explains, Jane is not alone; there are thousands of innocent children in Uganda (boys and girls) whose lives and dreams for a better future have been wrecked with impunity, some of them very young children.

In March last year, the African Network for the Prevention and Protection against Child Abuse and Neglect–(ANPPCAN), registered a defilement case from Bombo, Luweero District where a 10-year-old girl was defiled by her father while the mother was away. The case was reported to Police and it’s currently being handled by Naggalama Police Station in Mukono.

Similarly in Mukono District, a 12-old-year old girl was defiled and impregnated by her aunt’s husband. Surprisingly – or maybe not – the man was released and the case file went missing through unclear circumstances.

Statistics indicate that these sad and horrifying occurrences are many. A study funded by the World Bank in 2008, indicated that at the least, four per cent of all the upper primary school pupils in the country had been defiled by their teachers in the previous year.

Between 2009 and 2013, Police recorded 39,902 defilement cases across Uganda.
The 2013 Police crime report also showed that defilement and domestic violence were the highest crimes in the country.

Even worse, between 2012 and 2013, defilement cases reported drastically jumped from 7,690 to 9,598.

The bigger tragedy perhaps, is that there are several cases that go unreported due to what, Ms Diana Kagere of Center for Domestic Violence Prevention (CEDOVIP), says is corruption occasionally involving buying off the parents especially where there is fear of shame by those involved.

In this instance she said, the perpetrators are close relatives and those who hold power in communities.

From the analysis of police statistics, at least 665 children are defiled per month, 155 children per week and about 22 young girls and boys are defiled every day, sometimes by the very people who are supposed to protect them, indicating a deepening crisis that needs to be tackled urgently.

And yes, boys at risk too. Seven years ago, Parliament amended Section 129 of the Penal Code Act to capture the boys after it emerged women and men were taking advantage of the loophole in the law.

The crime was changed from being defilement of girls under the age of 18 to defilement of a person under 18 years of age. This meant that the law now punishes defilement of girls and sexual molestation of boys.

As such, last year, Entebbe Chief Magistrate’s Court found 30-year-old Sarah Nekesa from Mutungo, a Kampala suburb guilty of sexually molesting a 16-year-old boy she employed as a casual worker. She was sentenced to seven years in prison.

Because girls are the most affected, the conviction of this self-employed woman went down in the records of Uganda’s court history as one of the few women to be convicted for defilement.

According to the Penal code Act, defilement is a sexual offence against children. The 1995 Constitution defines a child as a person below the age of 18 years.
However, the dictionary defines defilement as: “... to corrupt the purity of (or) to debase.” Other jurisprudence describe defilement as “…to pollute, to corrupt the chastity of, to debauch or to violate.”

Under the law, defilement takes different manifestations as listed in the Penal Code. For instance, a person who performs a sexual act with another person who is below 18 years commits a felony known as defilement and is on conviction liable to life imprisonment. The same law provides for aggravated defilement as sexual acts with a person below the age of 14.

Other experts who spoke to Daily Monitor said, defilement takes different manifestations as listed in the Penal Code. Mr Najib Musoke, a graduate of psychology agrees with the legal definition of defilement especially on the fact that the ingredients of the offence of defilement are that (a) the girls must be below the age of 18; (b) that there was carnal knowledge; (c) that the accused committed the offence.

Sexual exploitation
Paul Nyende, a lecturer at Makerere University Psychology department, said in trying to get to the root of the problem, it’s not appropriate to call it defilement; rather, it should be called “sexual exploitation” or paedophilia.
He said this kind of exploitation may involve sexual contact with the child which may require penetration or sexual arousal and fondling.

Even without penetration, Nyende said, what constitutes sexual exploitation also ranges from touches that are sexual to exposure of the child to pornographic material and use of vulgar language.
“Most people only look at sexual penetration and forget that even exposing your nudity to the child or having them fondle you constitutes sexual exploitation,” Nyende said.

Asked whether one could tell that a child has been defiled, he said observation alone is not enough and that it requires thorough interviews and assessment with the affected child using psychological tools to ascertain that the exploitation took place.

The case of aggravated defilement

The facts of a 2010 defilement case before Justice Monica Mugenyi were that a one Kakooza alias Kiyaga defiled a five-year-old girl on various occasions in 2009. The accused pleaded “not guilty” to the charge of aggravated defilement.

In such cases, it might not be easy to prove that one is guilty. According to Justice Mugenyi, to constitute an offence of aggravated defilement, the following ingredients should be proved: that a sexual act was performed on the victim, and that the victim was under 14 years of age when the act was performed.

Aggravated defilement also includes where the offender is infected with HIV; a parent or guardian or a person in authority over the victim is the offender; where the victim of the offence is a person with disability; or where the offender is a serial one.

The burden of proof in criminal proceedings according to Justice Mugenyi lies squarely with the prosecution. Having established that the victim, in the case of the five-year-old, did suffer aggravated defilement, the issue then was whether or not it was indeed the accused person who molested her.

The question also arose as to whether or not the accused was properly identified by the victim or indeed any other witness present at the scene of crime.

But after the prosecution proved the offence beyond reasonable doubt, the judge found him guilty contrary to section 129(3) and (4) of the Penal Code Act, and convicted him of the offence as charged.

Medical evidence

Even though medical evidence is vital, in law, Justice Okumu Wengi said while convicting Kassim Sekabito who had defiled a 14-year-old girl in a criminal case No. 178 OF 2003, “It is possible to convict a person on the uncorroborated evidence of a single witness, provided the trial court is satisfied that the possibility of mistaken identity is ruled out and tested the evidence of sole identifying witness: Uganda Vs Musese & Anor (1982) HCB 72.”

However, he said, it is also trite law that medical evidence and opinion in defilement cases are of great help. “Courts may act in absence of such opinion evidence when there is other available evidence to back a conclusion.”

Considering that the accused was a neighbour who was trusted by the child’s mother as well as the child herself, Justice Wengi said, in his judgment, that the accused’s offence was not only deliberate but intended.

The man took advantage of an innocent child who was not only rather dull but did so wantonly. He therefore deserved a deterrent sentence. He (the judge) took into account the fact that he had served a prison remand and sentenced him to 12 years in prison.

Twice defiled, twice abandoned

Joyce (not real name), was 15 when she started a relationship with a man who was 13 years older than her. It was a start of a troublesome life for the teenager but she did not know it then. Joyce, who was at the time a primary six pupil, was lured into falling in love, with a man who only had intentions of defiling her.
Now a mother of four, Joyce a resident of Gulu Municipality, tells her story with bitterness and anger.

“I was a trusted girl whom my parents believed in and had all the hopes of being someone important in future once I finished my education. But all their hopes were shattered.”

She says it all started one afternoon in 2001, when she was going back home from school. “A strange man came to me and asked for my name and later proceeded to tell me romantic words, which by then I had not heard from anyone.”

She rejected the man’s pleas and threatened to report him to her parents but he kept following her every day with gifts, which eventually lured her into trying out a relationship with him.

“In the first month of the relationship, I never lacked any thing I desired; he would give me money and other material gifts but I never wanted to arouse my parents’ suspicion. I kept them at my friend’s place and also shared some with my close friend,” she says.

“I started coming back home late because sometimes he would branch off with me to a lodge after school and then spend time in the hotel room before giving me money and then calling for a boda-boda to take me home. “Whenever my parents asked why I came home late, I would explain to them that we had an extra lesson or even tell them I had gone to visit some friends whom they knew, something they would not doubt because of the love and trust they had bestowed on me,” narrates Joyce.

It was during the frequent visits to the lodges that she lost her virginity, and in early 2002, her parents discovered that she was pregnant.

“My parents insisted on knowing why my skin texture had suddenly turned pale and asked whether I was pregnant, but I denied because I knew nothing about pregnancy. They subjected me to a pregnancy test at a medical clinic.” The test was positive.

Tough moments
The discovery of her pregnancy marked a turning point in her life. She faced rejection from her parents and some close relatives.

“I convinced my boyfriend and arranged for a meeting under duress of my parents, relatives and police whom my parents had reported the matter to.

They wanted to arrest him. Luckily, he appeared at the meeting venue and he was apprehended and taken to Gulu Central Police Station,” she says.

A few days later, however, they discovered he was not in police custody. Her parents with the help of some police officers tried to follow up the matter but gave up later.

“It was the last time I saw him. I have never heard about him or seen him in 12 years since then. He never even showed me where he stays or works nor introduced me to any of his friends,” narrates Joyce.

She later gave birth to a baby girl, whom she had difficulty taking care of and because of her new responsibilities, she was no longer able to continue with school.

Two years after that incident Joyce fell in love with another man who had proposed marriage to her.
“I was 17 years old then, in 2003. I thought I was already mature enough for marriage. With this man’s assurance and all his promises of settling down with me, I shared the idea with my parents who gave me a go ahead.” The courtship lasted for about a year. Later in 2004, Joyce started a family with this man who she felt was sincere.

“He told me he had no other woman apart from me. My parents trusted him so much and they hoped for the best in my relationship.”

However the relationship soon turned dreadful, when his first wife whom he has two children with discovered that he was cheating on her. “I was already three months pregnant with his child. I was abandoned again by someone whom I had trusted.

This man stopped paying for the house rent and giving any financial support. I had to find a way to meet my needs since I did not want to put my parents through the first experience I had brought them,” Joyce sobs as she tells her story.

“With the little money I had, I rented a grass thatched hut, where I started washing clothes for people, to fend for my two-year-old daughter’s needs. It is where I also gave birth to my second child.”

However, it was tough and Joyce decided to relocate to her parents’ home in March 2005.

Today, at 28, she has four children from different men, whom she takes care of with the help of her parents and with the little money she earns from working in a hotel. However she has vowed never to get married to any man because of the experience she went through.

“I have had the worst experience, I could have been a nurse now had this first guy not messed up with my future. Some of my friends have made it in life and I feel bad when I see some of them driving or working in good places,” says Joyce.

Torture vs defilement

Explaining what constitutes defilement, ANPPCAN highlights the story of a six-year-old girl from Kamuli District (her names withheld because she is a minor) who suffered at the hands of her step mother who forced a stick in her private parts summarily damaging her birth canal, bladder and rectum. “This is also defilement,” ANPPCAN says in a March 2013 statement.

Speaking in his individual capacity however, the deputy president of Uganda Law Society, Mr Ernest Kalibala, said, “This is not defilement, it is torture”.

Mr Kalibala, a criminal lawyer further explained that the purpose of defilement is for strange sexual pleasure; so pushing a stick into one’s private parts would be to harm them but not for sexual fulfilment. However, he was quick to add that there are some weird people who could be pushing the stick into the private parts of a child just to derive sexual fulfillment.”