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“A person who takes advantage of a mentally challenged girl and sexually abuses her doesn’t have a heart or mind. That a man can relieve his sexual urge by sleeping with a teen, who has a mental disability is a selfish act. In fact, I wonder whether such a person can call himself sane,” Ken Munyua, a psychologist posits.

Justin Obura considers such a person an animal—a beast. Obura, a fishmonger in Kisumu county recalls how such an inhuman person preyed on her then 12-year-old first born daughter, Merceline Awuor, who is autistic and has an intellectual disability. He waited until Obura went to purchase fish at Nduru Beach in Nyando, Kisumu and pounced on the minor.

When she came back, her daughter had been defiled and the suspect had already fled the scene. The act that occurred in the year 2000 not only left her pregnant, but also HIV positive.

“My daughter didn’t even scream for help. In fact, she gave scanty details about what had happened to her the following day. Though, we took her to hospital, it was too late and the evidence had been tampered with. We reported the matter to the area chief who took it up, but unfortunately, the suspect ran away and disappeared before being arrested and up to date, we have not gotten justice,” she shares.

Financial, emotional drain

Six years later, Awuor was raped again in 2006. “This time round, she did not speak up, we only realised when her pregnancy started to show when she was around four months. Up to now, we do not know what transpired, “Obura says.

That her daughter got two children barely before she reached 18 was overwhelming for the mother of 12. The situation, she says, got worse when Awuor suffered a stroke in 2008. It was a double tragedy. “In her condition, she can’t take care of her children. To date, I’m the one who takes care of my two grandchildren, with the first grandchild being also mentally ill,” she says.

Awuor’s medication is also expensive for her mother to afford. Her drugs cost Sh4,000 a month.

Psychologist Munyua shares how raising a child under normal circumstances is demanding. “Now add to it the fact that you are raising a mentally challenged teen. It is draining; physically, emotionally and financially. For lack of a better word, it is overburdening. And when she gets pregnant, you are faced with a question of whether to keep or terminate the pregnancy. If you opt to terminate the pregnancy, you have to prove beyond reasonable doubt that the child can cause harm to the mother. Then there is stigma from society. Some will even blame the family for siring mentally ill children,” he says.

Obura concurs. She says her husband left, saying he couldn’t father a child who is not healthy. “My husband left us because of the condition of my children, since I also have a daughter with a hearing disability,” she said.

Additionally, some caregivers, Munyua says, blame the teen despite their intellectual disability. “Some caregivers insult such children, arguing that  if she is sexually active, she cannot be mentally ill, and therefore, is a pretender,” adds the psychologist.

More vulnerable group

There are also risk factors involved when a mentally challenged teen gets pregnant. “Most people who are mentally challenged are aggressive in nature. They can harm themselves or the baby in the womb. Convincing them to go for anti-natal clinic, for instance, is a challenge. Giving birth is another process. You have to be careful lest they harm the baby. They are also prone to post traumatic stress disorder and depression,” Munyua says.

While people with intellectual disabilities experience sexual violence in many of the same ways as the general population, Munyua says they may be more vulnerable to sexual violence because of their dependence on others for economic support, personal care, and support with tasks associated with daily living. Perpetrators of sexual violence are not only strangers, but can be caregivers, or friends to the family who the victim trusts.

Wairimu Munyinyi-Wahome, Executive Director, Coalition On Violence Against Women (COVAW) says matters pertaining to the abuse of individuals with intellectual disability merit priority if we are serious about recognising universal human rights.

The advocacy and policy specialist, shares how Sexual Offences Act under Section 7 provides that a person who intentionally commits rape or an indecent act with another, within the view of a family member, a child or a person with mental disabilities is guilty of an offence and is liable upon conviction to imprisonment for a term, which shall not be less than 10 years.

“A person who has a mental disability is regarded not to be capable of giving consent to any kind of sexual acts,” she explains.

Questioning the law

Wairimu, however, notes derogatory language and discriminatory statutory provisions in the Penal Code and the Evidence Act. Section 146 of the Penal Code says, any person who, knowing a person to be an idiot or imbecile, has or attempts to have unlawful carnal connection with him or her under circumstances not amounting to rape, but which prove that the offender knew at the time of the commission of the offence that the person was an idiot or imbecile, is guilty of a felony and is liable to imprisonment with hard labour for 14 years.

Section 125 (2) of the Evidence Act provides that a mentally disordered person or a lunatic is not incompetent to testify unless he is prevented by his condition from understanding the questions put to him and giving rational answers to them.

Wairimu reveals that Covaw filed petition E390 of 2022 seeking to challenge the constitutionality and validity of the provisions of Section 146 of the Penal Code and Section 125 (2) of the Evidence Act. The matter has been fixed for mention on the December, 7 this year.

“It is Covaw’s contention that the impugned sections clearly show different treatment on the basis of disability and perpetuate the culture of violence, stigma and discrimination against the survivors with intellectual disability through the continued use of the demeaning and derogatory words —“imbecile”, “idiot”, and “lunatic” within the law,” she explains.

Challenges in seeking justice

Wairimu further shares how survivors with intellectual disabilities face difficulties in testifying in courts. “They will have challenges recalling information and sequencing of events. Even though the Sexual Offences Act provides safeguards that protect vulnerable witnesses, there appears to be a gap on the procedures, on what should transpire and at what point to activate the protections,” she says.

Lack of trained personnel or experts who understand the special needs of survivors who have mental disabilities in the judiciary during the trial process is another challenge, Wairimu observes. This is because when the vulnerable witnesses are testifying in court, some evidence might be left out.

Another challenge is poor evidence collection and preservation when cases are reported. This, she says, has led to collapse of cases at the courts due to lack of evidence.

The expert advises training personnel both at the reporting stage and adjudication stage on the special needs of persons with mental disability. This includes setting up special courts for such persons. “There is also need to develop rules on the limitation period for adjudication and determination of sexual offences involving persons with mental disability to ensure expeditious disposal of  cases,” she says.

Meanwhile, Obura calls upon parents of children with intellectual disability to embrace them with love. “Your child will remain your child no matter what,” she says in ending.