Sex between 12 and 16 now okay in South Africa

Green light for teenage sex

Yolande Du Preez

IT IS no longer a criminal offence for children aged between 12 and 16 to engage in consensual sexual activities, the Pretoria High Court ruled yesterday. See story here

Judge Pierre Rabie’s ruling follows an application in April by the Teddy Bear Clinic for Abused Children, supported by the Centre for Child Law, challenging provisions of the Sexual Offences Act.

It asked the court to declare certain provisions unconstitutional as they infringed on a child’s right to dignity and privacy.

The application was opposed by the justice minister and the national director of public prosecutions.

While the judge’s ruling was described as a “victory for the rights of children” by the director of the Teddy Bear Clinic, Shaheda Omar, the Department of Justice and Constitutional Development said it would impact on the escalating rate of sexual violence among those under the age of 16 years.

In his ruling, Judge Rabie declared the two sections of the Sexual Offences Act, which criminalise consensual sexual activity between children aged between 12 and 16 years, invalid and inconsistent with the constitution.

The Sexual Offences Act states that all consensual sexual acts between children of that age – even kissing and not only penetration – are criminal offences.

This meant that both consensual parties faced the possibility of being criminally prosecuted.

The act also stated that any person – parents, teachers, school nurses or others – aware of consensual sexual activities between children have to report them to the police or face possible prosecution themselves.

During arguments last year, Judge Rabie voiced his own concerns about the legislation.

He noted that in terms of the act, it would even be an offence if a child under 16 was kissed on the mouth when relatives came together and greeted by kissing.

“This shows the absurdity of some of the provisions of this act,” he said at the time.

According to the respondents, the act is to protect children from predatory adults and sexual predators, and to correct and regulate the sexual activity of children, among others.

“Very little, if anything, is added to the protection of children by criminalising consensual sexual conduct between children, and it has been proven by evidence submitted to court that children charged under the provisions will be severely harmed,” the judge said.

Omar said the Teddy Bear Clinic was delighted by the court’s ruling.

“It promotes the best interests of children by protecting them from being violated by the criminal justice system, therefore advancing the rights of children,” she said.

Mthunzi Mhaga, spokesman for the Department of Justice and Constitutional Development, said the department had noted the ruling made by Judge Rabie.

“We are currently studying the judgment and reflecting on all the legal issues canvassed therein with a view to exploring whether there are valid grounds upon which an appeal can be lodged.

“This judgment has far-reaching implications in the escalating rate of sexual violence among children under the age of 16,” he said.

Mhaga said the decision whether to appeal against the ruling would be determined only after a proper analysis of the judgment.

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