Is teen sex a crime?

By Drum Digital
24 November 2010

ON THE surface the two cases don’t have that much in common – the two girls involved don’t know each other and probably will never meet.

Yet there are startling similarities between them: for a start, both are 15. And both have found themselves embroiled in a controversy about underage sex that has dominated social network sites, newspaper headlines and radio talk shows lately.

The most recent case involves a teenager who gave birth to conjoined twins at Soweto’s Chris Hani Baragwanath Hospital. The media clamoured to find out more about her – but in no time a blanket of silence had been drawn around the 15-yearold mom, her family and her tiny twin daughters, known only as Reamogetse and Tiroyaona.

The reason? The father of the babies is 22 and police were investigating whether to charge him for statutory rape for having sex with the teen mom.

Then – to the shock of the girl and her family – he was arrested, although at the time of going to press the family vowed to do everything they could to get the charges dropped.

Not long before this drama, two boys and the girl involved in the Jules High School scandal heard the word “statutory rape” too – among other legal terms.

The girl, whom DRUM dubbed Mbali shortly after the story broke (Ruined by rape, 18 November), went from being the victim in a gang-rape case to one of the accused in a startling about-turn by the National Prosecuting Authority (NPA) that left everyone baffled.

She and one of the boys, a 14-year-old, faced a charge of “consensual sexual penetration”, while the older boy, who’s 16, faced a charge of statutory rape.

Legal advocacy groups and children’s rights groups were enraged, but the NPA was adamant.

“After studying the evidence prosecutors concluded there was insufficient evidence to prosecute the two boys with rape and requested further investigations while considering other possible charges,” the NPA said in a statement.

The girl, it appears, had changed her story and said the sex was consensual.

Prosecutors have applied for the case to be diverted away from the criminal justice system. This means the teens won’t stand trial but will participate in an intervention programme best suited to them.

“The charges have not been dropped against the three,” says senior public prosecutor Nthabiseng Mokoena.

“However, if they don’t complete the intervention programme to our satisfaction court proceedings will continue.”

But just what is going on? How can a girl who is a victim one minute be an accused the next? And if a 15-year-old girl gives consent for her boyfriend to sleep with her, surely that’s her business – even if he is seven years older than her?

It all has to do with the Sexual Offences Act, which was signed into law by former president Thabo Mbeki in December 2007.

The law was amended to protect children under 16 from sex acts at the hands of adults, Lisa Vetten of the Tshwaranang Legal Advocacy Centre explains. “Section 54 of the Act says anybody with knowledge of a child or a mentally disabled person having sex should report it to the police immediately.

“In the case of the 15-year-old mom of the conjoined twins, the doctor who saw her when she first presented her pregnancy should have reported it to the police. If you don’t report knowledge of underage children having sex you could be prosecuted yourself.”

Read the full article in DRUM of 2 December 2010

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