A Pretoria High Court Judge ruled yesterday that it is no longer a criminal offence for children aged between 12 and 16 to engage in consensual sexual activities with each other.
Judge Pierre Rabie’s ruling follows an application last April by the Teddy Bear Clinic for Abused Children, supported by the Centre for Child Law, challenging certain provisions of the Sexual Offences Act. (See full judgment)
The ruling which still has to be confirmed by the Constitutional Court has met with mixed reaction.
The Christian-oriented Jutice Alliance of South Africa (JASA), which appeared in the case as an amicus curiae, says the judgment should be rejected by the Constitutional Court “on grounds of common sense”.
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Africa Christian Action (ACA) and the Family Policy Institute (FPI) say the “illogical” judgment has “far reaching implications for SA society and indeed for parental authority. This 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”. The two organisations call on Christians to pray about the ruling and to write to the Minister of Justice, Mr Jeff Radebe “today”, urging him to appeal against the ruling.Correspondence should be sent to Ms Kgomotso Maditla firstname.lastname@example.org or fax: 012 315 1749.
According to a report in the Mail & Guardian, child rights advocates welcome the ruling, saying that the decriminalisation of child sexuality removes children’s fear of seeking guidance from parents, teachers, counsellors and health professionals. ‘Child rights advocates’ quoted in the report are Vivienne Mentor-Lalu, advocacy coordinator for Resources Aimed at the Prevention of Child Abuse and Neglect; Carina du Toit, an advocate at the Centre for Child Law; Childline South Africa’s national coordinator Joan van Niekerk; and Paula Proudlock, child rights manager at the Children’s Institute.
“Judgment does not endorse child sex’
Carina du Toit, in an email reply (copied to Gateway News) to questions from Samantha Bezuidenhout, the mother of two daughters, says the judgment does not endorse child sex but rather rules on how to deal with a situation in which minors have already had sex. Bezuidenhout asked if the ruling promoted sex outside of marriage, since it legalised sex between children below legal marriage age. She also asked who would pay for “safe sex material” for children and whether parents would be required to provide a venue for children to have sex. Du Toit said it was still up to parents to provide moral and other guidance to their children. She did confirm that condoms and contraceptives have been available free of charge from state clinics and hospitals since 2007.
While Judge Rabie’s ruling was described as a “victory for the rights of children” by the applicant and Teddy Bear Clinic director Shaheda Omar, the Department of Justice and Constitutional Development said it would impact on the escalating rate of sexual violence among children under the age of 16. The Department says it will decide whether to appeal after it has made a proper analysis of the judgment.
The applicant in the case argued that the Act often resulted in underage pregnant girls not wanting to have abortions at clinics, as this would lead to criminal charges against them and their partners.
They requested 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.
In his ruling, Judge Rabie declared the two sections of the Sexual Offences Act, which criminalise consensual sexual activity between children under the age of 16 years and above 12 years, invalid and deemed them to be inconsistent with the constitution.
The Act criminalises all consensual sexual acts between children of that age, even kissing. It also states that any person, be it parents, teachers or others, who are aware of consensual sexual activities between children have to report the children to the police, or face possible prosecution themselves.
In a media release, JASA says the judge’s orders give rise to ‘glaring anomalies’. The chief anomaly may be demonstrated with a simple example:
A boy of 15 forms a sexual relationship with a girl of 12 or 13, who is more than 2 years younger than himself. According to Judge Rabie, no offence would be committed. But the day the boy reaches 16, should they decide to have sex on a birthday celebration, he commits an offence; and any further sex until she reaches 16 would be criminal.
JASA believes the judge wholly overlooked this anomaly; certainly he makes no mention of it in his judgment. Other anomalies would arise under the criminal provisions of the Film and Publications Act if any attempt were made to film sexual acts between children. Again the judge fails to address his mind to those matters.
JASA says it will apply to be heard in the Constitutional Court as amicus again, and will urge the court to send the whole matter back to Parliament. It says that “apart from anything else the absurd definition in the Act which defines ‘sexual violation’ to include simple kissing, must be addressed”.
JASA says it also maintains it’s stand, supported by a great deal of expert evidence which was placed before Judge Rabie, that the best interests of children and the public interest require that South Africa, in common with the vast majority of other democratic countries, must prohibit sexual intercourse between children, even if in practice, prosecutions are only very seldom brought.
During the trial 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 each other 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 there to protect children from predatory adults and sexual predators. It is also meant to protect children from the criminal justice system, 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,” Judge Rabie said.
Although Judge Rabie’s ruling means that children can no longer be prosecuted for consensual acts, non-consensual acts remain illegal as do cases in which adults have had sex with minors.