With more than 400 submissions on the Criminal Law (Sexual Offences and Related Matters) Amendment Act to weigh up, the chief justice and Correctional Services parliamentary portfolio committee said yesterday it will be asking the Constitutional Court for an extension of time, reports The Citizen.
In October 2013 – in what has become known as the Teddy Bear case – the Constitutional Court declared certain sections of the Act “constitutionally invalid to the extent that they criminalise consensual sexual conduct between children”.
The court gave lawmakers until April to sort the matter out. Dr Mathole Motshekga, chairperson of the committee, said it would tell the court it had not had sufficient time – this despite the order being handed down in October 2013.
“If we go ahead within the timeframe, people will approach the same court complaining about lack of consultation,” Motshekga said.
According to a statement by African Christian Democratic Party MP and committee member Steve Swart: “it became clear parliament has not consulted sufficiently on this bill, given the complex issues and the very short period allowed for public submissions, since the bill was only tabled in December 2014, and the parliamentary advertisements were placed in newspapers only weeks ago”.
He said the consultation and deliberation process being extended was not guaranteed. In the original case – The Teddy Bear Clinic for Abused Children and Another vs Minister of Justice and Constitutional Development and Another – the court said the “provisions were declared invalid only to the extent they criminalise consensual sexual conduct between adolescents.
“The criminal prohibitions against non-consensual sexual conduct with children of any age, and against sexual activity between adults and older children on the one hand, and adolescents on the other hand, remain in place.”
Justice Alliance of South Africa’s (JASA) John Smyth made a 35 minute presentation to Parliament, reports JASA on its website. His proposals provoked a large number of questions from most of the Committee members, it notes. JASA says its proposals are in summary:
1. An increase in the lower age of consent for penetrative sex to 13 years.
2. Kissing should be removed entirely from the definition of sexual violation.
3. A parent or guardian who knowingly permits a child under 14 years to engage in penetrative sex shall be guilty of an offence. (cf. the offence committed by a parent who knowingly permits his child to miss school)
4. Any person such as a teacher who knows of a child under 14 years having penetrative sex shall report the matter to a designated child protection organisation or a social worker for investigation.
Other Christian organisations that made public submissions on the bill include the Family Policy Institute, the Catholic Bishops Conference and the Kingdom Governance Movement.
In its coverage of the hearings, Mail & Guardian writes that the Bill seeks to amend the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007, so as to ensure that children of certain ages are not held criminally liable for engaging in consensual sexual acts with each other; give presiding officers discretion in order to decide in individual cases whether the particulars of children should be included in the National Register for Sex Offenders or not; provide for a procedure in terms of which certain persons may apply for the removal; of their particulars from the National Register for Sex Offenders. It reports that the Bill has raised the ire of Christian-based organisations but enjoys the support of child abuse centres.
Declaring their support for the amendments, the Teddy Bear Clinic said children convicted of a sexual offence should not automatically go on the register as it was problematic because children are treated in the same way as adults. “It should not be a one size fits all. Children should not automatically be placed on the register unless the child presents a high risk of re-offending or has committed more than one offence. It has to be compelling circumstances which must be at the discretion of the court what those circumstances are,” Shaheda Omar said.
The Teddy Bear Clinic as well as the Resources Aimed at the Prevention of Child Abuse and Neglect both said the amendments were not about decreasing the age of consent from 16 to 12.
Christina Nomdo, of RAPCAN, said decriminalising sexual intercourse between adolescents would not lower the age of consent. “They cannot consent to sex with anyone more than two years older or younger than themselves when they are between the ages of 12 and 16.”