Child sex ruling welcomed

By Drum Digital
16 January 2013

Two organisations working with abused children have welcomed a court ruling against the criminalisation of consensual sexual acts between teenagers.

The judgment by the High Court in Pretoria was a victory, the Teddy Bear Clinic for Abused Children, and Resources Aimed at the Prevention of Child Abuse and Neglect (Rapcan) said on Wednesday.

"Children will no longer be unnecessarily exposed to the criminal justice system and will again be able to seek advice and support on sexual matters without the risk of being reported to the police."

On Tuesday, Judge Pierre Rabie held in favour of an application stating that the provisions in the Sexual Offences Act criminalised significant numbers of children for engaging in consensual sexual activities.

The judge found these consensual sexual activities were of a wide range of acts that would commonly be performed by children engaging in ordinary sexual exploration such as "French" kissing.

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

Rapcan applauded this as a recognition of children's right to dignity, privacy and their right to participate in decisions about sexuality.

"Professionals and parents are now able to provide children with the necessary support and guidance about sexuality, to make informed decisions without fear of incriminating the child or themselves," the group said.

Spokeswoman for the Teddy Bear Clinic, Shaheda Omar, said the judgment promoted the best interests of children and protected children from being violated by the very system supposed to protect them.

"We would like to emphasise that this case does not affect or deal with any acts of sexual violence perpetrated by children," she said.

"It deals exclusively with consensual sexual acts between children and that any non-consensual violent sexual offences committed by children would still be dealt with in the criminal justice system."

The department of justice said the judgment had far-reaching implications in the escalating rate of sexual violence among children under the age of 16 years.

Justice spokesman Mthunzi Mhaga said the department was reflecting on all the legal issues in the ruling to see whether there were valid grounds for an appeal.

Omar said the department's reaction was a gross misstatement of the nature of the case and the issues at stake.

Justice Alliance of SA (Jasa), which appeared in the case as amicus curiae (friend of the court), said the decision should be rejected by the Constitutional Court on the grounds of common sense.

It said the ruling could not stand because it gave rise to glaring anomalies which defied common sense.

The matter would now proceed to the Constitutional Court for confirmation of the declaration of unconstitutionality.

-by Sapa

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