Adolescent sex and “defilement” in Malawi law and society

Congratulations to Godfrey Dalitso Kangaude,  an LL.D. (doctoral) Candidate in the University of Pretoria’s Department of Private Law, who recently published his article on this challenging topic.  We are pleased to circulating this abstract.

GD Kangaude “Adolescent sex and ‘defilement’ in Malawi law and society” (2017) 17 African Human Rights Law Journal 527-549.  DOI link.    Article online

Abstract:  During colonisation, Malawi received a Western penal code, which included the “defilement” provision, restricting males from sexually accessing girls below a specified age. Countries that maintain colonial age of consent provisions, including Malawi, have uncritically assumed that these laws serve the purpose of protecting girls and children from harm. This article examines the fundamental assumptions underlying the development of sections 138 and 160B of the Malawian Penal Code, and their historical and sociocultural origins.  This article suggests that these provisions serve the interests of adults and not those of children. They are inherently heterosexist, promote gender-stereotypical meanings of sexuality and potentially stigmatise the normative development of sexuality in children. Sections 138 and 160B need to be reviewed and aligned with Malawi’s commitments to promote gender equality and sexual health and the rights of children.

Key words: childhood sexuality; child rights; Gender Equality Act, age of consent, Malawi Penal Code.

See also:
–A controversial decision from Kenya
Martin C.   v. Republic, Criminal Appeal No. 32 of 2015, April 26, 2016 (High Court of Kenya, at Malindi).  [Court held that the sexual relationship between adult man of 23 and girl of 14 is not “defilement” because she sought it.  Prisoner released.]  Decision online.

Godfrey Kangaude, “Adolescent Consensual Conduct,” and African case summaries in chapter 2 (“Children and Adolescents”) of:
Legal Grounds III: Reproductive and Sexual Rights in Sub-Saharan African Courts
, ed. Godfrey D. Kangaude (Pretoria: PULP, 2017) 228 pages.
Flyer with Table of Contents.     Entire book online

Posted by the Coordinator of the International Reproductive and Sexual Health Law Program, reprohealth*law at For Program publications and resources, see our website, online here. TO JOIN THIS BLOG: enter your email address in upper right corner of this webpage, then check your email to confirm the subscription.

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