Last week’s Constitutional Court ruling decriminalising consensual sexual relationships between teens was met with moralising outrage across the country. Sensationalist media fanned the flames of indignation by failing to contextualise the law’s effect on teen sexual relations – including rape.
Under the impugned sections 15 and 16 of the Sexual Offences Act (SOA) teenage rape survivors, especially girls, run the risk of being criminally charged for being raped.
On 3 October the Constitutional Court finally brought an end to litigation brought by children’s rights organisations against sections 15 and 16. In a unanimous judgment authored by Sisi Khampepe, the court found that the sections served to deny teens of their right to privacy and dignity, among others. The Teddy Bear Clinic for Abused Children as well as RAPCAN – or Resources Aimed at the Prevention of Child Abuse and Neglect – brought the application against the Minister of Justice and Constitutional Development and the national Director of Public Prosecutions.
The impugned sections of the SOA sought to prohibit 12 to 15-year-old children from engaging in any voluntary and consensual sexual conduct with one another. The prohibited conduct includes anything from holding hands through to penetrative sex. In fact, all forms of contact between children of 12 to 15 years old that an adult may merely consider ‘sexual’ are prohibited.
The backward and grave consequences of the struck sections aren’t merely hypothetical, and were illustrated after the alleged gang rape of a young girl, aged 15, by two teenage boys, aged 14 and 16, at Jules High School in Johannesburg in 2010. The girl was allegedly drugged by the two boys, who then raped her. The incident was recorded on witnessing children’s cell phones, and made it impossible to dispute that sexual intercourse had occurred between the three teens. But the National Prosecuting Authority (NPA) withdrew the rape charge for a reported ‘lack of evidence’, only to charge all three children with statutory rape – based on the now impugned sections 15 and 16 of the SOA.
The NPA’s decision to drop the rape charges against the girl’s attackers only to pursue criminal charges against the girl herself had many South Africans recoil in horror at the apparent miscarriage of justice, and questions were raised about the problems with these sections of the SOA.
Now that the Constitutional Court has ruled against this very section, many South Africans are calling for it to be reinstated as a result of the distorted reportage from many members of the South African media and headlines like “Judge okays child sex”. (The Pretoria News was forced to retract this headline after it was accused of sensationalism in its coverage of North Gauteng High Court judge Pierre Rabie’s ruling against sections 15 and 16 earlier this year.)
As a result of the warped logic of these sections, as well as other provisions that support it, teenage girl survivors of rape stand the very real risk of being penalised as perpetrators for their own rape. Attorney for the Women’s Legal Centre Sanya Bornman rightly pointed out that such legislation will have a disastrous impact on the provision of services for young teen rape survivors – an ironic and unintended consequence of an otherwise progressive law that seeks to enable and support rape survivors’ access to services as well as protect them from victimisation by police, healthcare workers and the justice system.
The implication of these sections for teenage rape survivors is especially worrying since 1 in 4 rape survivors [PDF] are teenage girls.
In addition, adults – such as teachers, medical professionals, counsellors, psychologists and others that may spend a great deal of time working with young teens – who witness or are made aware of consensual ‘sexual’ acts between teens are obligated to report the ‘crime’ to authorities. If an adult is aware of hand-holding, cuddling or sex occurring between young teens and does not immediately report the case to the police s/he is liable for a fine or prison sentence not exceeding five years. The same obligation to report applies to parents: under sections 15 and 16, were your own teenage child to admit to you that he or she had merely kissed another child their age, you are legally bound to report this to the police immediately lest you become a criminal yourself.
The potential chilling effect of this obligation to report sexually active teens is far-reaching. It could serve to discourage schools and teachers from engaging in any kind of sex education or conversations with children under 16, as they would be obligated to report to police any admission of consensual sexual conduct by their teenage charges.
A lack of sex education for young children is nothing less than dangerous in country like South Africa where the Institute for Race Relations reported that 5,6-million people were first notified of being HIV positive and one in three deaths was Aids-related last year. As a result of already poor sex education and access to contraceptives, South Africa is also seeing an increasing number of young teenage girls falling pregnant. And since girls bear the physical marker for sex both in terms of pregnancy and a higher chance of contracting an STD, girl teens are also more likely to be prosecuted under this legislation, according to Bornman. “Clearly section 15 and 16 affect girls disproportionately to boys, and for that reason alone the sections violate all girls’ constitutional right to equality before the law,” she added.
To criminalise consensual sex discourages young teens from accessing medical services medical needed to treat and prevent sexually transmitted diseases and pregnancy, as medical staff who deal with teens that present with these conditions are obligated to report them to the police. This has the potential of both discouraging young teens from disclosing their condition, as well as dissuading medical professionals from asking the right questions with regards to these teen’s sexual engagements.
These aspects of the problem sections of the SOA were not adequately explained in media coverage about the ruling. Instead, many newspapers and radio show hosts choose to sensationalise the ‘legalised sex between children’ issue, thereby distorting the implications of the ruling and what it means for South Africa’s young teens and the adults that live and work with them.
If one ignores the obvious strain this sexual pedantry would have on the justice and prison systems, it has the potential of putting immense strain on teachers and families, as they are practically barred from having open and honest discussions about responsible sex and sexual autonomy with their kids between 12 and 15 years old.
Law professor Pierre de Vos further addressed the various problematic contradictions contained within the SOA with regards to the sexuality of children 12 years and older. For instance, when children 12 to 15 engage in consensual sexual conduct – like hand-holding, kissing, petting, oral and penetrative sex – with children their age, both children have committed a crime and could be prosecuted. If a child in this age group engages in sexual conduct with a child over 16 however, then only the older child has committed a prosecutable offence. Unless the younger child lied to the older and claimed to be 16 years old, in which case neither of them could be prosecuted.
Instead of fully reporting on the effects of these sections of the SOA on young children’s freedom, sexual expression and dignity, many reports focused on the supposed horror of ‘legalising’ sex amongst children and fanned the flames of moral indignation that spread across airwaves, newspaper pages and internet blog posts. As misinformed opinions about the ruling spread, many South Africans argued that the ruling would ‘encourage’ children over 12 to have sex.
If we are to believe that legislation ‘encourages’ children to behave in certain ways, then surely the problem sections of the SOA ‘encourages’ young teens to engage in sex with older teens, as long as they lie about their true age?
Considering the disastrous implications of these sections of the SOA, South Africans should welcome the Constitutional Court’s ruling. It is a crucial step towards an open conversation with teens about sex and what constitutes responsible, safe and healthy sexual behaviour. And where teens are having sex, teens will have access to healthcare (including contraceptives), counselling and sex education without their service providers – or even their parents! – running the risk of arrest.
The most important implication of the Constitutional Court’s ruling however, is the protection of the rights of teen rape survivors and their access to justice.
Related articles
- Twelve-year-olds can have sex: ConCourt (This headline is an example of the ridiculous and selective coverage of the ruling.)
Michelle Solomon 
To even click on the “Like” button is an atrocity. I am only doing so to show that I have read your post. Three times as a matter of fact.It is to say the least Despicable that a Government can feel so little for the welfare of our children. There is no future for these children. Problem here is that marches and riots and writing down our disgust on paper and social media will not have any effect on the powers that be. They are just as corrupt as the vile people they protect. (The Rapists)
Rape is an alarming factor in SA and it starts with education. Education at home. We are breeding a society of bullies, rapists and deadbeats, and it’s being ok’ed by the Government.
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