Sex between consenting adolescents no longer a crime: a legal perspective

[notice]Advocate Nadene Badenhorst provides a neutral, legal perspective on a controversial Bill that deals with adolescent sexuality. Her hope is to assist Gateway News readers who may have moral concerns about the implications of the proposed change to the law and who may wish to make submissions to Parliament on the matter as is being called for by various groups including the African Christian Democratic Party.[/notice]

A controversial new Bill that has commonly been described as one that would lower the age of sexual consent from 16 to 12 years of age, has South African parents up in arms. 

Does this mean that a 16 year old boy can have sex with a girl who just turned 12, and the law is okay with it? What if the 12 year old girl agreed? But what if she did not agree, and he forced himself on her? 

- Advertisement -

These are some of the questions surrounding the proposed amendments to the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007 (“the Act”) that have evoked rather emotional responses from parents (particularly Christian parents) who, with good reason, want to protect their young children against the potential consequences of engaging in sexual conduct at such a young age.

In terms of a notice by the Portfolio Committee on Justice and Correctional Services, the public has opportunity to make submissions in respect of the Bill until 12:00 on Tuesday, 3 February 2015.

The Act in its current form    
In terms of the Act as it currently stands, any person that performs sexual penetration without the consent of the other person, is guilty of a criminal offence namely rape.

- Advertisement -

The proposed amendments to the Act do not specifically interfere with these provisions relating to unconsensual sex between adolescents (which will therefore remain a criminal offence), but relate rather to consensual sex or sexual acts between adolescents.

Sections 15 and 16 of the Act as it currently stands, make it a crime for adolescents (i.e. those in the age group of 12 up and until (but not including) 16 years of age) to engage in consensual sex or sexual acts (including kissing and cuddling).

The Act furthermore provides for a National Register for Sex Offenders, a compendium containing amongst other things the particulars of persons convicted of any sexual offence against a child. This means that adolescents found guilty of crimes relating to sections 15 and 16 (i.e. for having engaged in consensual sex / sexual acts with one another), could find themselves included on this Register. 

The implication of the Act in its current form, is that adolescents who consensually engage in sexual acts with each other, must by law be arrested, prosecuted and if found guilty of having done so, (both) be sentenced – unless the Director of Public Prosecutions exercises his discretion not to prosecute. 

Even so, the shock of being arrested, fingerprinted, questioned by the police and possibly even being detained in police cells, do not leave these adolescents unscathed. This is traumatic to say the least for these adolescents, who at these ages are naturally inquisitive about sexuality and who are in a heightened phase of sexual exploration (although such activity is generally not beneficial to their emotional and spiritual development at these ages).

While, as Christians, we may feel biblical and moral outrage at the thought of sexual activity taking place between unmarried people and especially adolescents, the unfortunate reality is that a great number of our young people are sexually active. Statistics have shown that at least a quarter of South African adolescents are sexually active by the time that they are 15. Many more would have engaged in kissing by the time that they are 16. In view of this, it stands to reason that the Act in its current form has not succeeded in acting as a deterrent to inappropriate sexual conduct between adolescents, but has unfortunately only served to traumatise adolescents engaging in such conduct.   

What is more, the Act in its current form potentially also places those who love, care for and/or counsel adolescents (including parents, church pastors and youth workers / counsellors) in a conundrum since they themselves may have to face the choice of either breaking trust with the adolescent(s) for reporting their criminal behaviour (i.e. engaging in consensual sex or sexual acts) to the police, or facing criminal charges themselves for not having reported behaviour that they knew to be a crime.

As a result further, it has been argued that the Act in its current form drives adolescent sexual exploration underground and thus has the ramification of causing bona fide acts of sexual abuse, remaining undisclosed for fear of being held criminally liable.

The reason for the amendments
In The Teddy Bear Clinic for Abused Children & Another v Minister of Justice and Constitutional Development & Another (CCT 12/13), the Constitutional Court unanimously decided that sections 15 and 16 of the Act are unconstitutional and invalid.  According to the Constitutional Court, the criminalisation of sex or sexual acts between consenting adolescents, amounts to a violation of adolescents’ human rights to dignity and privacy.

The effect of the Constitutional Court’s finding is that adolescents can no longer be prosecuted for consensual acts, but that non–consensual acts will remain illegal (as do obviously cases in which adults engage in sexual activities with minors).

The Constitutional Court ordered Parliament to correct the unconstitutional provisions in the Act, and to do so within a period of 18 months following the judgment which was rendered on 3 October 2013 – hence the Bill which is now being proposed.

The proposed amendments
In response to the Constitutional Court’s judgment and in order to bring the Act as it currently stands in line with the judgment of the Court, the Portfolio Committee on Justice and Correctional Services has prepared an Amendment Bill in terms of which:

• Adolescents can no longer be held criminally liable for engaging in consensual sex with one another; 

• Presiding officers in court cases will have a discretion to decide whether the particulars of adolescents should be included in the National Register for Sex Offenders; and 

• A procedure is introduced, allowing certain adolescents to apply for the removal of their particulars from the National Register for Sex Offenders.     

It is important to note however that, where the age gap is more than two years, a person (whether an adult or an adolescent) who engages in sex or sexual acts with an adolescent will be guilty of a crime – even where consent has taken place. In other words, where for example a sixteen year old boy engages in sex or sexual acts with a twelve year old girl, he will be guilty of a crime – whether or not the girl consented.  Where however a fourteen year old boy engages in sex or sexual acts with a twelve year old girl, he will not be guilty of a crime if the girl consented thereto. If the girl did not consent, he would still be guilty of rape.

Again, the issue that the Constitutional Court had to decide in the Teddy Bear Clinic case, was not whether adolescents should or should not engage in sexual conduct, or whether it was good or bad for them to do so. The pertinent issue was whether it is constitutionally permissible to subject adolescents to criminal sanctions (as the Act in its current form effectively does), in order to deter early sexual intimacy and combat the risks associated therewith.

As already stated above, the Constitutional Court found that it was not constitutionally permissible to criminalise consensual sex or sexual acts between adolescents. As the highest authority on constitutional issues in our country (including the constitutional validity of Acts of Parliament), Parliament is duty-bound to act in accordance with what the Constitutional Court has ordered, whether or not it (or likewise, the public) likes or agrees with that decision. For this reason, it may well be extremely difficult to persuade Parliament not to amend the Act in accordance with what the Constitutional Court has already decided.

In any event, it is proper for Parliament to adopt a narrow interpretation of the Constitutional Court’s judgment in the Teddy Bear Clinic case, and to go no further in its amendments of the Act than what is absolutely necessary to give effect to the Court’s judgment. The anticipated submissions to Parliament in respect of the Bill, will hopefully provide Parliament with a creative solution to do just that – give effect to the Court’s judgment, while also protecting our young girls who are particularly impressionable and vulnerable from sexual abuse and exploitation. 

Written submissions addressed to the Portfolio Committee on Justice and Correctional Services, should be directed to the Committee Secretary, Cindy Balie, and may be posted to PO Box 15, Cape Town, 8000; e-mailed to cbalie@parliament.gov.za; or faxed to 086 665 5444. Persons making submissions should indicate their interest in making a verbal presentation to the Committee.  The closing date for submissions is 12:00 on Tuesday, 3 February 2015.