[notice]The Parliamentary Portfolio Committee on Justice and Correctional Services has asked the Constitutional Court for more time (an extension from April 5 to August 5, 2015) to consider proposed amendments to the Criminal Law (Sexual Offences and Related Matters) Amendment Bill to allow for sufficient public participation. During four days of public hearings on the Bill the committee received more than 900 submissions on the Bill and 30 oral representations. In a declaration (see below) supporting the Committee’s interim report, ACDP MP and member of Committee, Steve Swart (above), sets out to clarify the complex issue that arises from two separate Constitutional Court judgments.[/notice]
The ACDP supports the report. Indeed it was the ACDP that recommended that Parliament should apply to the Constitutional Court for an extension to deal with this controversial matter. This is the first time, as far as I am aware, that Parliament has taken such a step.
The issue arises from two Constitutional Court judgments dealing with adolescent sexual activities. The Teddy Bear Clinic case declared sections 15 and 16 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act Amendment Bill – the Sexual Offences Amendment Act unconstitutional. The court found that the declaration of invalidity was suspended for a period of 18 months in order to correct the defects in light of this judgement.
What is this controversial issue about? In a nutshell, it relates to whether it is constitutionally permissible for children (12 to 16 years of age) to be subject to criminal sanctions in order to deter sexual intimacy and combat the risks associated therewith. The court decision was not about the age of consent or about whether children should or should not be engaged in sexual conduct – it relates only to decriminalisation. It must be emphasised that the judgement does not affect the ban on adults having sex with children below the age of 16 years.
The ACDP wants to make it very clear that we believe it is both morally wrong and not in the best interests of children to engage in sex. However, the reality is that it is happening. The issue is then how best to address this, and whether by criminalising this conduct the risks associated will be alleviated. Clearly, the family, churches and other faith-based and educational institutions, as well as society as a whole needs to play a far greater role in teaching and educating children about abstinence and the risks of premature sexual activities. The state should only come in as a last resort, where necessary.
This is a complex issue and we have received almost a thousand submissions, most opposing the amendment Bill. It is regrettable that the Executive took so long to table the Bill – some 14 months after the judgement. We are in the middle of the public hearings and will not be able to finalise the amendment Bill through both Houses before the cut-off date at the beginning of April. This is the reason for the application for extension which the ACDP supports.
The Court found that criminal sanctions infringed on the children’s constitutional rights to human dignity and privacy and were not in the best interest of the child.
The Justice Department also did not prove that criminalisation would control the risks associated with consensual adolescent sexual behaviour. Parliament was instructed to decriminalise consensual sex between children12 to 16 years of age.
While the ACDP does not necessarily agree with the judgement that found the criminal approach unconstitutional, Parliament is bound by it. We agree however that children should not be jailed for engaging in consensual sexual activities. That was never the intention with children to be diverted away from the formal criminal justice process. The court found, however, that this was not constitutionally acceptable.
This is regrettable as similar provisions are to be found in various other countries in order to discourage adolescent sexual behaviour. Children need not only to be protected from adult predators, and older children, but also from themselves. Do they have the cognitive development at the impressionable age of 12 to take decisions with such far-reaching consequences? Why do we set the age at 18 years for buying cigarettes and alcohol, for obtaining a drivers licence, and for entering contracts? It is believed that by that age children have the necessary cognitive development to understand the consequences of engaging in certain activities.
On the other hand we appreciate that in some instances the criminal sanctions may have had the opposite effect as well, where adolescents did not seek assistance or advice due to the fear that they could be prosecuted. The situation is aggravated when the reporting requirements are taken into account. A further unintended consequence could be that if a young girl laid a charge of rape, and the perpetrator alleged she consented, and she was unable to prove that she did not give consent, she could then be charged for engaging in consensual sex. This is of course intolerable, indicating that the Act requires improvement.
So what is the answer?
The Court made it very clear that it was not dealing with the age of sexual consent – but only with decriminalisation. The court also highlighted the following:
 I accept that the purposes of discouraging adolescents from prematurely engaging in consensual sexual conduct which may harm their development, and from engaging in sexual conduct in a manner that increases the likelihood of the risks associated with sexual conduct materialising, are legitimate and important.
In view of the large number of submissions (more than 900) in opposition to the proposed amendment decriminalising adolescent consensual sex (between the ages of 12 and 16 years, and in certain cases 16 and 17 years) we believe firstly that serious consideration needs to be given to lift the age of consent, and secondly we may need to include some mechanism where concerned parents, educators or caregivers can refer adolescents who engage in inappropriate sexual behaviour. Possibly such children may be children in need of care in terms of the provisions of the Children’s Act, Act 38 or 2005.
We agree that the Act needs improvement and broadly support the other amendments relating to section 16 and the Register. Our concern relates to section 15 dealing with full penetrative consensual sex of a homosexual and heterosexual nature of children 12 to 16 years of age, (and in certain cases 16 and 17 years of age).
The judgement was delivered on 3 October 2013 giving Parliament until 2 April 2015 to remedy the defect. This would normally be more than enough time, but regrettably there was an inordinate delay by the Executive in tabling the amendment Bill. This was only done in December last year, some 14 months after the judgment. This is the reason for the application to the Constitutional Court for an extension, which we support.
In view of the massive public interest in this matter, it is necessary to explain what the court said. The court said, “At the outset it is important to emphasise what this case is not about. It is not about whether children should or should not engage in sexual conduct. It is also not about whether Parliament may set a minimum age for consensual sexual conduct. Rather (the court said), we are concerned about a far narrower issue; whether it is constitutionally permissible for children to be subject to criminal sanctions in order to deter sexual intimacy and combat the risks associated therewith.”
The court emphasised that “the subject matter of the impugned provisions, in addition to being policy-laden, is sensitive and has attracted a high degree of public scrutiny.” Indeed, this is correct as 930 public submissions were received, most of which oppose the decriminalisation of adolescent sex between the ages of 12 and 16 years.
The court also stated that “Parliament is institutionally best-suited to ensure that the ultimate statutory regime is decided upon in an open, inclusive and transparent manner, with all the relevant parties who so desire being given the opportunity to shape the debate and the eventual outcome.”
To give effect to this, and in view of the delay in the tabling of the amendment Bill, it has become necessary to approach the court for an extension, which the ACDP supports.
I thank you.