Age of consent may be raised

2008-08-06 09:44

Philip de Bruin

Cape Town - There is a possibility that the Constitutional Court may increase the age of consent at which children may agree to sex, from 16 to 18.

This is only seven months after the Sexual Offences Act, which came into effect in December, determined that the age of consent for boys and girls was 16.

If it was changed to 18, it would be the first time in 51 years that girls are only allowed to agree to sex at the age of 18, instead of 16.

Advocate F Roberts, acting on behalf of the National Prosecuting Authority, on Tuesday handed documents to Chief Justice Pius Langa, in which he argues that the legislative authority had made a mistake to fix the age of consent at 16, as 16 was in itself an unconstitutional age for sex.

He said the SA Law Reform Commission and legislative authority had "after many years of deliberation" decided to set the age of consent at 16.

'Unconstitutional'

Up until December, when the new act took effect, the age of consent for girls was 16 and for boys 19. The only apparent reason why the legislative authority determined both genders' ages at 16 appeared to be that it was unconstitutional to have two different ages for the two genders, said Roberts.

But, he said, the easy solution for this unconstitutionality was not to allow voluntary sex from age 16 for both genders. The Constitution, after all, described a child as someone younger than 18. Secondly, the new sex act itself stated that the minimum age for several sex related acts, like watching pornography, was 18.

It was bizarre, said Roberts, that nobody was allowed to possess pornography in which a person of 16 or 17 appeared, but that the same person was able to legally have sex with the same person of 16 or 17 years old.

Roberts argues that the legislative authority did not place children's interest first and foremost, as the Constitution in Article 28(2) requires, when it determined the age of consent for voluntary sex at 16.

The Constitutional Court will hear the case on August 28.

- Beeld