From online abuse to ‘sex for marks’: Kenya moves to criminalise deepfake sexual violence and sextortion

This story has significance for readers across Kenya and beyond.

What you need to know:

- Kenya is proposing sweeping reforms to tackle artificial intelligence-driven abuse, sextortion and cyber-enabled sexual violence.

- The proposed amendments introduce new digital sexual offences, strengthen survivor protections and require mandatory gender desks at every police station.

Twenty years after Kenya enacted the Sexual Offences Act, the country is seeking to update the law to confront forms of abuse that were barely imagined when the legislation came into force.

From sexually explicit deepfakes and cyberstalking to sextortion and the non-consensual sharing of intimate images, technology has created new avenues for sexual exploitation and exposed gaps in laws.

Now, a proposed review of the Sexual Offences Act (2006) seeks to bring those emerging offences into the law, strengthen protection for survivors and make institutions more accountable.

The proposals were developed by the National Council on the Administration of Justice Standing Committee on the Review of Sexual and Gender-Based Violence Laws.

Christine Kungu, chairperson of the Federation of Women Lawyers-Kenya (Fida-Kenya), chairs the committee and said the review was informed by changes in society and the growing use of technology to perpetrate abuse. “The objective is to make sure that contemporary issues have been covered,” she said.

She noted that when the current law was enacted, the digital offences now confronting the country had not emerged in their current form. The proposed changes, however, must still go through Parliament, which will facilitate public participation, before they can become law.

Prohibiting sextortion

But Christine said that once enacted, the new provisions would give investigators and prosecutors a clearer legal framework for pursuing offences that are currently difficult to address. “Once it is approved by Parliament, then the prosecution should be able to charge people accordingly because it will now be law,” she said.

Among the proposed offences is sextortion, which would criminalise the use of authority, threats or coercion to demand sexual favours. She said the proposal would cover situations in which people in positions of power exploit their authority for sexual gain, including a common problem of 'sex for marks' in the universities.

The Bill also proposes to introduce stalking as a standalone offence, covering repeated conduct that causes a person to fear for their safety. This would include physical following, surveillance, online monitoring and unwanted communication. It would also criminalise voyeurism, where individuals observe or record another person’s private acts without consent, yet they expect privacy.

Criminalising silence

The proposed amendments also seek to respond to the growing misuse of artificial intelligence (AI). It would be criminal for one to create and share sexually explicit or intimate images generated or altered using AI, known as deepfake sexual images.

The legal expert said the proposed law is intended to make people and institutions more accountable, where they know that technology is being used to harm others but choose to remain silent. She said entities that know about conduct prohibited under the proposed law would be expected to report it.

“If it's a company which knows that so-and-so has been doing this, you ought to report. And if investigation is done and they find that you knew and you did not report, then you will suffer the penalty as per the bill,” she explained.

“So, we want to encourage people to know that if you know someone is doing something, contrary to what should be done under this offence, please report…if you don't, then you know you're going to be part and parcel of court proceedings. So the whole idea is for people to stop keeping quiet, knowing that one person is ruining other people's reputation by using technology.”

Beyond creating new offences, the proposed reforms seek to change how survivors are received and handled when they report abuse.

The Bill would make gender desks mandatory in every police station and require them to be staffed by officers trained to handle gender-related cases. Christine said some police stations already have gender desks under existing police policy, but the arrangement is not backed by law and is, therefore, not consistently implemented.

“The difference between policy and the law is that a policy gives people discretion,” she explained. “But when it is in the law, it becomes mandatory.”

Making gender desks a legal requirement, she said, would close the gap between police stations that have them and those that do not. It would also require the National Police Service to provide resources for training officers and operating the desks, she added.

'Romeo and Juliet' cases

One of the proposals that has for long been a subject of debate touches on sexual relationships among those aged 17 and below, often referred to as the “Romeo and Juliet” cases.

The proposed law seeks to prevent the automatic criminalisation of one party in consensual relationships between adolescents as it's the current case where the boy-child is punished posing questions of discrimination.

Under the proposed framework, the exemption would apply to adolescents aged 14 to 17, provided they are no more than two years apart and the relationship is found to have been consensual, non-coercive and non-exploitative. Under Section 221 of the Children Act (2022), a child below the age of 12 cannot be held criminally responsible for an act or omission.

The law further presumes that a child who commits an offence while under the age of 14 is incapable of distinguishing between right and wrong, unless the court is satisfied, based on evidence, that the child had the capacity to do so.

Christine said the proposal responds to cases in which adolescent boys have been charged with defilement after parents reported relationships involving teenagers who may have been close in age and in consensual relationships.

She said courts should be able to distinguish such cases from those involving force, exploitation or significant age differences. “If the court finds that there is consensus from both of them, and they’ve been dating, for lack of a better word, then you have no basis charging one with defilement,” she said.

However, she stressed that the provision would not remove protection for children or excuse abuse. “If the court finds that it was not consensual, then I believe the defilement charge will still stand,” Christine said.

For cases involving younger children or adolescents who fall outside the proposed age range, Christine said courts would retain discretion and would still consider factors such as exploitation, coercion and whether the children understood the nature of the conduct.

The aim, she said, is to find a more appropriate response for adolescents rather than automatically charging them with defilement.

Reporting originally appeared via Nation Africa. Read the full source for additional context.