Age of consent goes to ConCourt

2008-08-28 11:14

Johannesburg - The fairness of differing ages of consent for sexual relations and apparent clashes on this between various laws will be argued in the Constitutional Court on Thursday.

The case is related to an application by a man convicted of 10 counts of statutory rape with a boy when the boy was between the ages of 14 and 18.

As the age of consent was 19 years for homosexual relations, sexual intercourse between the applicant and the boy qualified as statutory rape.

As the Supreme Court of Appeal had lowered the age of consent to 16 years, they overturned the applicant's convictions on six of the 10 counts of statutory rape - all of which had happened after the boy's 16th birthday.

The overturning of the convictions is also dependent on confirmation of the order of invalidity by the Constitutional Court.

The Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 has repealed the section so the court views it as being about the protection of people who claim to have been unjustly convicted under unconstitutional legislation.

Clash with other laws

However, in its heads of argument, the State questions the lowering of the age of consent because it appears to clash with other laws that relate to children.

For example, in terms of the Film and Publications Act no one may produce or possess pornography featuring children under 18. The lowering of the age of consent however means that a person may have consensual sex with a child that is 16 or 17.

In terms of the law it is also an offence to groom a child under 18 for consensual sex, but in terms of other sections of the law, actual sexual penetration will not be a crime if the child is 16.

Various international charters that South Africa is a signatory to also ban the sexual abuse of a person under the age of 18.

- SAPA