Child sex law before ConCourt

2013-05-27 15:56
The Constitutional Court (Picture: Sapa)

The Constitutional Court (Picture: Sapa)

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Cape Town - The Constitutional Court will hear arguments this week regarding a lower court's finding that provisions in the Sexual Offences Act criminalise children who have consensual sex.

The applicants in the matter, the Teddy Bear Clinic and Resources Aimed at the Prevention of Child Abuse and Neglect, said on Monday they hoped the court would take all their arguments into account.

"We feel that targeting children and their consensual sexual behaviour in that criminalisation way is the wrong response," the applicants' attorney Carina du Toit told reporters in Cape Town.

"The right response is education programmes and for the school, teachers, and parents to deal with it, rather than the criminal justice system."

The applicants launched a constitutional challenge against some provisions of the act in the High Court in Pretoria in December 2010. The matter was heard on 23 and 24 April last year.

A ruling was made against Justice Minister Jeff Radebe and the National Director of Public Prosecutions on 15 January this year.

High Court Judge Pierre Rabie found the consensual sexual activities mentioned in the act were of a wide range of acts that children engaging in ordinary sexual exploration, such as "French" kissing, would commonly perform.

Personal relationships

He held that criminalisation would constitute an unjustified intrusion of control into the private sphere of children's personal relationships, in a manner that would cause them severe harm.

The act, as it stands, has criminal implications for children between the ages of 12 and 16 who engage in consensual sexual activities.

Any individual who has knowledge of these acts, such as a parent, health worker, or teacher, is required by law to report the children or face prosecution. The children, if found guilty, would have their names included on the National Sex Offenders Register.

The Women's Legal Centre (WLC), a friend of the court, said the application was about protecting the rights of children to dignity, privacy and freedom, and access to health services.

WLC attorney Sanja Bornman said on Monday that the provisions had indirect and unforeseen consequences, specifically for girls.

She said some girls of the relevant age could consent to kissing their boyfriend of a similar age, but not to full sexual intercourse.

"In the course of reporting a rape case, the girl essentially has to admit that she is guilty of a section 16 offence and this means that a young girl can go from being a complainant to a perpetrator," she said.


In these sexual cases consent could very often not be proved because there was only one witness, or there was a lack of evidence, she said.

"This has the implication that fewer girls will want to report these kind of incidents to the police."

The applicants also believed that fewer children would seek out health services, such as HIV testing, because they feared disclosure of certain sexual circumstances would lead to reprisal.

Du Toit said the State argued it had discretion on whether or not to prosecute children under these acts and would, in most cases, decide not to.

The applicants argued there was no indication as to how this discretion would be exercised and no guidance on what constituted permissible adolescent sexual development.

The State also argued that where a child was prosecuted, diversion would frequently occur, rather than conviction and sentencing, which resulted in a criminal record.

Du Toit said diversion still resulted in harmful and traumatic consequences for children because they would have frequent exposure to the criminal justice system through police and courts.

The applicants emphasised the application was not about justifying adult sexual engagement with children, challenging the criminalisation of non-consensual sexual crimes between children, or lowering the age of consent for children.

It was also not about promoting or encouraging sexual activity between adolescents.

Arguments would be heard on Thursday.

Read more on:    jeff radebe

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