Teen sex law back in court

2013-05-26 14:00

Act is ‘counterproductive and unconstitutional,’ says NGO

It was a case of puppy love between two teenagers, a happy relationship that might have ended in bittersweet memories.

Instead, it ended in shame, with the state levelling criminal charges against both.

She was labelled “easy”, and he “got away with it”.

This is one of the cases the Teddy Bear Clinic for Abused Children, an NGO, will this week use to show the Constitutional Court what the consequences are when the National Prosecuting Authority (NPA) brings criminal charges against children aged between 12 and 16.

The Teddy Bear Clinic argues that the case involving the two teens, both 15 years old, demonstrates why the provisions that criminalise consensual sexual activity between minors are “highly counterproductive and unconstitutional”.

The girl in the case, who can only be identified as “G”, told the Teddy Bear Clinic staffer who helped her that she and “H”, her boyfriend, always used condoms and she was on contraceptives.

G’s case was diverted from the formal criminal justice system to a young sex offenders’ programme, but this did not prevent some very nasty consequences.

“At school, her peers and teachers knew about the charge against her and she felt stigmatised and labelled as ‘easy’,” reads the founding affidavit.

“However, H did not experience the same consequences and therefore the impression was that he ‘got away with it’,” the affidavit reads.

It says that “G suffered much pain and shame from these events and said she would not engage in a relationship again, even though she and H still had strong feelings for each other”.

The current litigation before the Constitutional Court was sparked by the infamous Jules High School incident three years ago.

A 15-year-old girl at the Joburg school was allegedly raped by two classmates, aged 14 and 16. The incident was filmed by other pupils at the school on their cellphones.

The story made headlines across the world when the NPA decided to charge the two boys and the girl with statutory rape (consensual sex between minors).

The Teddy Bear Clinic along with Rapcan, another NGO that cares for abused children and fights for children’s rights, are arguing that the provisions of the Sexual Offences Act “expose adolescents to the trauma and indignity of the criminal justice system, marking them as criminals and sex offenders”.

They argue that criminalising consensual sex brands “certain activities, which may be a normal part of the development of adolescent sexuality, as abnormal and deviant”.

The North Gauteng High Court agreed with the two organisations, finding that the provisions “stigmatise and degrade children on the basis of their consensual sexual conduct”.

The high court also ruled that the provisions infringed the right to dignity, privacy, freedom and the security of the person concerned, as well as the principle that a child’s rights are of paramount importance.

Recognising that the act also criminalised actions like “petting” and “French kissing” if the age gap between the children was more than two years, Judge Pierre Rabie said that to subject “intimate personal relationships to the coercive force of the criminal law is to insert state control into the most intimate area of adolescents’ lives, namely their personal relationships”.

The two NGOs are now asking the Constitutional Court to confirm the order of constitutional invalidity granted by the high court.

In heads of argument for the minister of justice and constitutional development and the NPA, Advocate Vincent Maleka argues that the provisions are “not a product of a legislative aberration, designed to impose state morality on otherwise permissible choices by the affected children”.

He further argues that the provisions do not “prevent adolescents from ever making their own choices on consensual sexual activities”.

Rather, it requires them to “delay that choice until they reach a particular age of maturity”.

The case will be argued on Thursday.

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