24 November 2017

A Look at the Ruling on Consensual Sex Between Consenting Adolescents

12 December 2013

Criminalization of sexual conduct between consenting adolescents is unconstitutional, the Constitutional Court has ruled. The Highest Court in the Republic South Africa confirmed a lower court's decision that sections 15 and 16 of the Criminal Law Amendment Act 32 of 2007, which relate to sexual offences, were unconstitutional.

The Court ordered that the sections infringed on the rights of adolescents aged between 12 and 16 to dignity and privacy, and further violated the best interest principle contained in section 28(2) of the constitution of the Republic.

The Criminal Law (Sexual Offences) Amendment Act came to effect on 16 December 2007 and affects the punishment of sexual crimes committed after this date. The Act replaces some common law provisions on sexual offences and some sections of the old law, the Sexual Offences Act 23 of 1957. The Act also creates new sexual crimes.

Like most pieces of legislation that are passed in our Democratic State Criminal Law Amendment Act similarly when promulgated the legislature chose to ignore the principles of public participation by failing to engage the public including institutions dealing with children and women. Sure thing there is no denying that sexual offences and related crimes have become so prevalent in modern South Africa such that scores of crimes of this nature are reported on a daily basis.

When the Act was promulgated it was aimed amongst others, to include all sexual crimes in one law, define all sexual crimes and make all forms of sexual abuse or exploitation a crime, ensure that both men and women can use the law with regard to sexual crimes, make the age when both men and women can give permission (consent) to have sex, 16 years. Establish a National Register (a list of names) for Sex Offenders.

The court had initially reserved judgment in May on an application brought by the Teddy Bear Clinic for Abused Children, and Resources Aimed at the Prevention of Child Abuse and Neglect. The respondents were the minister of justice and the National Director of Public Prosecutions.

As a prayer the court was asked to confirm a judgment of the North Gauteng High Court in that sections 15 and 16 of the Sexual Offences Act are unconstitutional because they require the prosecution of children involved in consensual kissing, petting, and penetrative sex.

The Act, as it stands, has criminal implications for children between the ages of 12 and 16 who engage in consensual sexual activities. Any individual who has knowledge of these acts, such as a parent, health worker, or teacher, is required by law to report the children or face prosecution. The children, if found guilty, could have their names included on the National Sex Offenders Register.

As a result many teenagers were afraid of getting help from professionals because they were afraid of be handed over to the police. This infringed section 27 of the Constitution of the Republic of South Africa namely the right to access health care.

Justice Sisi Khampepe said “the matter was not about whether children should or should not engage in sexual conduct, nor was it about whether Parliament should set a minimum age for consensual sexual conduct, however, she said “the issue was whether it was constitutionally permissible for children to be subject to criminal sanctions to deter early sexual intimacy and combat the risks associated therewith.

When the Act came into effect on 16 December 2007 the legislature was hoping to combat Sexual offences which have become prevalent in modern South Africa. The judgment suspended the declaration of invalidity for 18 months to allow Parliament to amend the provisions.

Justice Khampepe ordered a moratorium (suspension of activity) on all investigations, arrests, prosecutions and criminal and ancillary proceedings (regarding adolescents) in relation to sections 15 and 16 of the act. This remains until Parliament has remedied the defects identified.

The judgment suspended the declaration of invalidity for 18 months to allow Parliament to amend the provisions. Children who were convicted under this act will see their convictions expunged. It is important to understand that the ruling did not mean that the age of consent had been reduced but that adolescents who consent to sex would not be criminalized for it.


Thabo Dipela
thabodipela@gmail.com

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