Originally published in Times Live
Teenagers have been given the go-ahead to kiss, hug and have sex without the threat of a criminal record.
The Constitutional Court yesterday found that the law criminalising such acts was unconstitutional and gave parliament 18 months to fix it.
It held that making such behaviour a crime – when it was part of normal adolescent development – would do more harm than good.
The court also said that the Sexual Offences Act not only infringed the rights to dignity and privacy of children aged 12 to 16 but was also not in their best interests.
The law made it a criminal offence for people aged 12 to 16 to engage in acts such as kissing, oral sex, “heavy petting” and sex if there was more than a two-year age gap between them. Doing so could lead to acriminal prosecution and the teenagers’ names would be listed in the National Register for Sex Offenders in the event of a conviction. The law obliged anyone aware of such behaviour to report it to the police, failing which they faced five years behind bars.
The two non-governmental organisations that challenged the law – the Teddy Bear Clinic for Abused Children and Rapcan – argued that the act contributed to social taboos.
The court found that the law was “over-broad” and had a “severe effect” on adolescents’ social lives and dignity.
“It cannot be doubted that the criminalisation of consensual sexual conduct is a form of stigmatisation, which is degrading and invasive,” the court ruled.
It said that listing the names of teenagers in the sex offenders’ register would have severely adverse consequences. They would, the court said, not be allowed to adopt or foster children and their employment options would be limited.
The court suspended all investigations, arrests, prosecutions and criminal proceedings relating to the law until it was amended.
The Constitutional Court ruling confirms a ruling by a Pretoria Supreme Court Judge in January. At the time Christian organisations said the ruling “will be interpreted as a green light for sex between minors especially in our sex saturated society. Legalised sex between minors could also legalise child pornography”.