SALC is working with Centre for Human Rights Education, Advice and Assistance (CHREAA) – Malawi in a challenge to the law of defilement in s138 of the Penal Code, insofar as it criminalises consensual sex between adolescents in Malawi. It is illegal to have sex with a girl under the age of 16 in Malawi, and there are no exceptions for consensual non-exploitative sex when the accused persons are themselves children/adolescents. This has resulted in cases of young people being incarcerated for lengthy periods for defilement and acts as a barrier to adolescents’ access to sexual and reproductive health information and services.
In the case of R v C, a 15-year-old boy, accused of defilement after having a consensual sexual relationship with a 15-year-old girl, an application for referral to the Constitutional Court and stay of proceedings was filed in the Child Justice Court. A hearing in the matter was held on 14 August 2020. The matter was referred to the Chief Justice for determination. Unfortunately, the Chief Justice declined to refer the matter for a constitutional hearing and referred the case back to the trial court for continuation of the criminal trial. The date for continuation of the trial has not yet been set.