Domestic violence remains a persistent scourge in the lives of many Kenyans, with thousands of victims being reported yearly.^[1] Domestic violence is violence or the threat of violence against a person currently in or has been in a domestic relationship.^[2] Although domestic violence typically occurs between two or more adults, children can also be affected, either as direct victims or through indirect exposure.^[3] While the direct victims of domestic violence come out scathed and jaded, this paper contends that the lasting impact on children is equally profound. These children do not simply observe violence; they internalise it, carrying psychological trauma and behavioural patterns into adulthood. When these children later appear in Court as offenders in domestic violence cases, should their traumatic upbringing mitigate their sentence? Or, conversely, where they have undergone therapy or received substantial help and thus comprehend the consequences of domestic violence fully, should this be treated as an aggravating factor?

This paper explores the impact of an offender’s childhood exposure to violence and the extent to which the courts consider it either as an aggravating or mitigating factor when it comes to sentencing a perpetrator of domestic violence.

The role of childhood socialisation in violence

Looking into the effect of the upbringing of a child and how it affects them later, neurological and psychological studies of the brain have demonstrated that the sub-conscious mind majorly influences a person’s behaviours.^[4] That in the first seven years your brain is downloading data, installing fundamental programs that are fed to our subconscious mind.^[5] Throughout our lives 95% of our actions are ruled by our sub conscious mind while the conscious mind only controls 5% of our cognitive behaviour.^[6] As we proceeds in life it becomes hard to rewire parts of the minds circuitry.^[7]

Studies in psychology and sociology have also shown how childhood experiences, family peer groups and culture mould the individual.^[8] That Adverse Childhood Experiences (ACEs) such as hostile parenting and parental conflicts increase the risk of externalising and internalising behaviours.^[9] A child experiences psychological trauma from witnessing threats or violence against others, especially if the danger is due to human action and done by a person the child is familiar with violating their expectations about the safety and goodness of the world.^[10] Deductively, if a child is born and raised in a violent environment, this is likely to influence their character. To buttress this, the case of S v Robertson underscores childhood experiences and resulting impact on later relationships.^[11]

Case study: S v Robertson

In S v Robertson, a case decided by the High Court of South Africa concerned Grant Robertson who was convicted on nine charges relating to robbery with aggravating circumstances, assault with the intent to cause grievous bodily harm, assault, rape and murder. The personal circumstance of the accused was that he was raised by his maternal grandmother but had to move in with his parents when he was eight years old. During this time, he witnessed his father assaulting his mother. The home environment was characterised by constant violence in the form of physical abuse and alcohol dependency. His father had also rejected him as a son, a matter that weighed heavily with him.^[12] This history was left imbibed in the young man’s heart and he carried it with him in his first relationship and subsequent relationships.^[13]

One of the mitigating aspects that was raised for the court to consider was the exposure and internalisation of violence and humiliation that the accused may have suffered during his immature stages of bio-psychosocial development. This was supported by the Clark report on behavioural and social theorists who established that intimate partner violence is a learned behaviour, especially where a child grows up in a family where violence is seen as an appropriate way of dealing with conflict in relationships.^[14] The report further indicated that physically abusive men are likely to have physically abusive and violent fathers whom they model after.^[15] It also cautions us that not everyone turns out to be violent.

However, this was struck off as it was found that the pathological parenting condition did not last long as he was mainly educated and cared for in a supportive family environment where Christian values and acceptable moral guidance was extended to him.^[16] The Courts emphasised that although childhood trauma can influence behaviour, it does not absolve one of accountability.^[17]

This case animates the difficulty of balancing a child’s previous exposure to violence and how that affects them later.

The Kenyan context: Childhood exposure as an aggravating or a mitigating circumstance

In the Kenyan context, a person’s upbringing normally features in the pre-sentence reports that a probation officer prepares. The officers are required to ask reflective questions such as how their offending and self-image are linked to their childhood experiences, such as a background of violence.^[18] This report then provides advisory information to the courts when making sentencing verdicts.^[19] In addition, we have the Judiciary and sentencing policy guidelines, which standardise the sentencing process and procedures and provide for aggravating and mitigating circumstances.^[20]

The guidelines provide for mental illness or disability as a common mitigating circumstance during sentencing.^[21] Mental disorder is a catch-all for mental illness and developmental disorders. Examples might include schizophrenia, bipolar disorder, post-traumatic stress disorder (PTSD), or depression.^[22]

Despite the availability of the pre-sentencing reports and the guidelines when Courts mete out sentences, we do not see a deeper analysis into how the convict’s upbringing, particularly one that is marked with domestic violence, might have influenced their actions. The courts merely mention it. For instance, in R v JC, the court just acknowledged the fact that the perpetrator was from a dysfunctional family without exploring it further and how that might have affected the convict.^[23] In R v Johanna Munyau, when the convict's unhealthy past was raised, the court discarded the notion, stating that he should have sought help.^[24] This is very dismissive of the justice system and contrary to the expectation that it should look into a convict's childhood background and how that affects their self-image.

One possible explanation may be that because most domestic violence-related deaths arise from provocation, crimes of passion, or a history of violence in the relationship, the courts tend to focus on the immediate facts over the background context. Over the many years of socialisation that the convict underwent as a child. Where children have lived in such violent homes and internalised this violence, which becomes embedded in their subconscious mind during conviction, the courts should not just do a surface-level analysis. This paper recommends that courts should go beyond the immediate context and consider delving deeper into their upbringing, which would also enrich the sentencing if it takes a rehabilitative approach. 

On childhood exposure to violence as an aggravating circumstance, the author contends that the law as it is now emphasises the best interest of the child.^[25] The Children’s Act of 2022 provides for a family assessment order whereby a person is appointed by the court to offer guidance and counselling to the child. The Victim Protection Act of 2014 also prescribes services for those who have undergone emotional or psychological violence.^[26] If an offender who went through an ACE undergoes counselling, among other support services that can be offered, then the courts should flip the trauma from mitigation to aggravation because the defendant internalised the lessons yet chose to perpetuate harm. This will be a step towards shifting judicial focus to personal accountability.

Conclusion

It will be unwise not to acknowledge that many factors contribute to an offence by a person. That victim counselling might not be a blanket remedy to heal a child and that not all cases of domestic violence are reported. In summary, there is a need for courts to delve deeper into convict upbringing in domestic violence cases while considering it as an aggravating circumstance or a mitigating circumstance. There is similarly no yardstick that can be used to measure the extent a child’s exposure to violence can be said to have affected them. The author recommends that courts involve psychologists and other qualified professionals to better assess extents of trauma as opposed to reaching conclusions on their own accord.

^[1]Adeline Chelagat is a fourth-year law student with a deep passion for the intersection of gender and the law.

Joshua Laicchema and Rachel Njenga, ‘Ending Violence Against Women in Kenya: A Pathway to Achieving Food Security’ Kenya Institute for Public Policy Research and Analysis, 1 February 2024 -https://kippra.or.ke/ending-violence-against-women-in-kenya-a-pathway-to-achieving-food-security/ on 26 March 2025.

^[2]Protection Against Domestic Violence Act (No. 151 of 2015) section 2.

^[3]Michele Lloyd, ‘Domestic Violence and Education: Examining the Impact of Domestic Violence on Young Children, Children, and Young People and the Potential Role of Schools, Frontiers in Psychology, 13 November 2018-< file:///C:/Users/ADMIN/Downloads/fpsyg-09-02094.pdf> on 10 April 2025.

^[4]Saul McLeod, ‘Freud’s Theory of the Unconscious Mind’ Simply Psychology, 25 January 2024-< https://www.simplypsychology.org/unconscious-mind.html> on 26 March 2025.

^[5]Bruce Lipton, ‘The jump from cell culture to consciousness’ Integrative Medicine: A clinician’s journal, 2017 < https://pmc.ncbi.nlm.nih.gov/articles/PMC6438088/ on 19 March 2025.

^[6]Bruce Lipton, ‘The jump from cell culture to consciousness’ Integrative Medicine: A clinician’s journal, 2017 < https://pmc.ncbi.nlm.nih.gov/articles/PMC6438088/ on 19 March 2025.

^[7]National Scientific Council on the Developing Child, The science of early childhood development: Closing the gap between what we know and what we do, Centre on the Developing Child, 2007,5; Adrienne L Tierney and Charles Nelson, Brain Development and the Role of Experience in the Early Years, National Library of Medicine, 2013, 5.

^[8]William Arroyo and Spencer Ethan, ‘Assessment Following Violence Witnessing Trauma’ in Einat Peled, Petter Jaffe and Jeffery Edleson (eds) Ending the Cycle of Violence, SAGE Publications, 1994, 23.

^[9]Nirmal Gautam, Mohammad Mafizur Rahman and Rasheda Khanam, ‘Adverse childhood experiences and externalizing, internalizing, and prosocial behaviors in children and adolescents: A longitudinal study’ 2024 -< https://www.sciencedirect.com/science/article/pii/S0165032724011212> on 17 March 2025; Mary Boullier and Mitch Blair, Adverse Childhood Experiences’ 28(3) Pediatrics and Child Health (2018) 132.

^[10]William Arroyo and Spencer Ethan, ‘Assessment Following Violence Witnessing Trauma’,44.

^[11]S v Robertson (CC 4112020) [2022] ZAWCHC 104; 2023 (2) SACR 156 (WCC) (18 May 2022).

^[12]S v Robertson, 12.

^[13]S v Robertson, 15.            

^[14]S v Robertson,13.

^[15]S v Robertson, 13.

^[16]S v Robertson, 29.

^[17]S v Robertson, 29.

^[18] Probation and Aftercare Services, Guidelines for social investigations and pre-sentence reports, 5

^[19] Probation and Aftercare Services, Guidelines for social investigations and pre-sentence reports, 1

^[20]National Council on the Administrative of Justice, ‘Sentencing Policy Guidelines’ 63, 2023 < https://judiciary.go.ke/download/sentencing-policy-guidelines-2023/> on 18 March 2025.

^[21]National Council on the Administrative of Justice, ‘Sentencing Policy Guidelines’ 5.1.15.

^[22]National Council on the Administrative of Justice, ‘Sentencing Policy Guidelines’ 3.4.15.

^[23] Republic v J C [2021] KEHC 803 (KLR), 10.

^[24]//new.kenyalaw.org/akn/ke/judgment/kehc/2018/6434/eng@2018-05-23">Republic v Johana Munyau Mweni [2018] KEHC 6434 (KLR), 6.

^[25]Children Act (No. 141 of 2022) section 8.

^[26]Victim Protection Act (No. 79A of 2022) section 14.