Enabling Sexual Citizenship for Persons with Mental Disabilities: Reconciling the Sexual Offences Act of Kenya with the CRPD

This article examines the Sexual Offences Act of Kenya to determine whether it protects the rights of persons with mental disabilities to consent to sexual acts in consonance with the Convention on the Rights of Persons with Disabilities (CRPD). It is argued that the Act is discriminatory as it presumes that persons with mental disabilities lack competence to consent unless they meet a prescribed threshold of functional mental competence. While this presumption may be legitimate in order to protect persons with mental disabilities from sexual violence and exploitation, it is overbroad. To the extent that the Act requires a higher threshold of competence to consent to sexual acts for persons with mental disabilities than for persons without mental disabilities, it is excessively paternalistic and stereotypic as to be in conflict with the CRPD, which is predicated on substantive equality and human dignity.