Sexual harassment
(1) Any person who undertakes any unlawful, unsolicited and unwelcome sexual advances or requests for sexual favours is guilty of the offence of sexual harassment.
(2) The acts referred to in subsection (1) constitute an offence when -
(a) submission to or rejection of such conduct by an individual is made either explicitly or implicitly a basis of employment or of a career decision affecting such an individual’s employment or career advancement; or
(b) such conduct has the purpose or effect of interfering with an individual’s work or educational performance or creating an intimidating, hostile, or offensive working or learning environment; or
(c) such conduct is undertaken by a person in a position of authority over the other or in an unequal set up that forces the individual to unwillingly succumb due to extraneous and intimidating situations; and
(d) such acts include but are not limited to touching or fondling, exhibiting sexually explicit materials, gadgets or organs, and requests for sexual favours.
(3) Any person who contravenes the provisions of this section
is guilty of the offence of sexual harassment and is liable upon conviction
* to imprisonment for a term of not less than three years or
* to a fine of not less than one hundred thousand shillings
* or to both
Boss Harassments
Sexual offences relating to positions of authority, trust etc
(1) Whoever being the superintendent or manager of a jail, remand home or children’s or any institution or any other place of custody established by or under any law takes advantage of his or her official position and induces or seduces any inmate or inhabitant of such jail or institution, remand home, place or institution to have sexual intercourse with him or her, such sexual intercourse not amounting to the offence of rape or defilement shall be guilty of a sexual offence relating to a position of authority and shall be liable upon conviction
* to imprisonment for a term of not less than ten years.
(2) Any person who being a law enforcement officer takes advantage of his or her position and has sexual intercourse or commits any other sexual offence under this Act-
(a) within the limits of the station to which he or she is appointed; or
(b) in the premises of any station house whether or not situated in the station to which he or she is appointed; or
(c) on a person in his or her custody or in the custody of a law enforcement officer subordinate to him or her, commits an offence of abuse of position of authority and is liable upon conviction
* to imprisonment for a term of not less than ten years.
(3) Any person who being the manager of any hospital or staff of a hospital takes advantage of his or her position and has sexual intercourse with or commits any other sexual offence under this Act with any patient in the hospital, such sexual intercourse not amounting to the offence of rape or defilement shall be guilty of an offence of abuse of position of authority and shall be liable upon conviction
* to imprisonment for a term of not less than ten years.
(4) Any person who being the head-teacher, teacher or employee in a primary or secondary school or special institution of learning whether formal or informal, takes advantage of his or her official position and induces or seduces a pupil or student to have sexual intercourse with him or her or commits any other offence under this Act, such sexual intercourse not amounting to the offence of rape or defilement, shall be guilty of an offence of abuse of position of authority and shall be liable upon conviction to imprisonment for a term of not less than ten years.
(5) Any person who being in a position of trust takes advantage of his or her position and induces or seduces a person in their care to have sexual intercourse with him or her or commits any other offence under this Act, such sexual intercourse not amounting to the offence of rape or defilement, shall be guilty of an offence of abuse of position of trust and shall be liable upon conviction
* to imprisonment for a term of not less than ten years.
- Sexual relationships which pre-date position of authority or trust
(1) Conduct by a person which would otherwise be an offence under this Act against another person is not an offence under section 24 if, immediately before the position of authority or trust arose, a sexual relationship existed between that person and the other person.
(2) Subsection (1) does not apply if at that time sexual intercourse between such persons would have been unlawful.
(3) In proceedings for an offence under this Act it is for the accused person to prove that such a relationship existed at that time.
Offences within Precincts
Offences within precincts or premises of corporations, societies etc
Where an offence under this Act is committed within the premises or precincts of a company, body corporate, society, or association, any person charged with, or concerned or acting in, the control or management of the affairs or activities of such company, body corporate, society or association shall be guilty of that offence and liable on conviction to imprisonment for a term of not less than ten years or to a fine of not less than one million shillings or to both, unless it is proved by such person that, through no act or omission on his or her part, he or she was not aware that the offence was being or was intended or about to be committed, or that he or she took all reasonable steps to prevent its commission.
Evidence of character and previous sexual history
(1) No evidence as to any previous sexual experience or conduct of any person against or in connection with whom any offence of a sexual nature is alleged to have been committed, other than evidence relating to sexual experience or conduct in respect of the offence which is being tried, shall be adduced, and no question regarding such sexual conduct shall be put to such person, the accused or any other witness at the proceedings pending before a court unless the court has, on application by any party to the proceedings, granted leave to adduce such evidence or to put such questions.
(2) Before an application for leave contemplated in subsection (1) is heard, the court shall direct that any person, other than the complainant, whose presence is not necessary, may not be present at the proceedings.
(3) The court shall, subject to subsection (4), grant the application referred to in subsection (1) if satisfied that such evidence or questioning-
(a) relates to a specific instance of sexual activity relevant to a fact in issue;
(b) is likely to rebut evidence previously adduced by the prosecution;
(c) is likely to explain the presence of semen or the source of pregnancy or disease or any injury to the complainant, where it is relevant to a fact in issue;
(d) is not substantially outweighed by its potential prejudice to the complainant’s personal dignity and right to privacy; or
(e) is fundamental to the accused’s defence.
(4) A court shall not grant an application referred to in subsection (1) if, in its opinion, such evidence or questioning-
(a) relates to the sexual reputation of the complainant and is intended to challenge or support the credibility of the complainant;
(b) is sought to be adduced to support an inference that by reason of the sexual nature of the complainant’s experience or conduct, the complainant-
(i) is more likely to have consented to the offence being tried; or
(ii) is less worthy of belief.
