Child sex ruling welcomed

2013-01-16 14:39

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

The judgment by the North Gauteng High Court 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."

Dignity, privacy

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.

Spokesperson 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."

Sexual violence

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 spokesperson 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.

  • joy.m.smith.925 - 2013-01-16 14:49

    Granted, children should feel free and safe to discuss their sexuality with their parents, grandparents, aunts and uncles. I am all for open and honesty with children, rather they know right from wrong, than experiment and hear stories from their friends. But this is ridiculous, you're giving a CHILD a loaded gun. A 12 -16 year old, is STILL a CHILD. They do not have the common sense of the consequences of their actions. This new ruling should state exact facts. Does this include actual intercourse or is it only for "french" kissing, and then it escalates, but Children & parents need to know where the line is drawn. What is happening to our country, our justice system?! How can you possibly try and protect your kids when rulings like this are made. - 2013-01-16 15:00

      Shadow were YOU an innocent little child at 16?? and what about your friends, were they??

      Clarve - 2013-01-16 16:09

      To clear it up, as it seems you and I read 2 separate articles. People under the age of 16 may still not engage in sex. However, they no longer are obliged to report it to the police. The aim (put forward by specialists in the field) is to muster a more comfortable situation for teens to deal with and report such happenings, as currently a lot of teens are avoiding speaking to their parents or guardians or counselors for fear of legal ramifications. If a teenager needs help, they need help. Not a criminal record and days in court.

      bryan.culross - 2013-01-16 16:16

      How is the judgment giving the children a loaded gun. You seem to have no understanding of what the judgment is all about!

  • frank.swanepoel.3 - 2013-01-16 14:53

    I see, so if an 18 year old (an adult by any definition) has consensual sex with a 12 year old then that's just fine and dandy? This is one of the most ridiculous findings from a judge that I have ever heard and for this to be applauded by children rights organizations just shows how bad this country moral compass have become. - 2013-01-16 14:57

      Frank please READ the article .... its deals with under 16 and not adults

      frank.swanepoel.3 - 2013-01-16 15:02 please read the judgement..... it deals with children aged between 12 and 18 and that was what I referred to, nowhere did I state that it deals with adults.

      christoffvstaden - 2013-01-16 15:29

      @frank This law is about kids having sex. Younger then 16 - older then 12. It has nothing to do with consensual sex between adults - 16 upwards. In the past kids could be charged criminally for engaging in sex, and this judgement is about making it non-criminal. This has nothing to do with lowering the age of consent, which is 16 BTW & not 18. Should an 18yr old have sex(consensual) with a 12yr old, it will still be seen as rape.

      frank.swanepoel.3 - 2013-01-16 16:38

      Again christof look at the judgement. Judge Rabie found the section that criminalize a consensual sexual act between children aged 12 - 16 unconstitutional AS WELL AS (since this is in the same section) the part that criminalize a consensual sexual act between a person aged 16 - 18 with a person younger than 16 AND also the section where it is a criminal offense to have sex with a person two years younger than you. Therefore an 18 year old may now have consensual sex with a 12 year old without facing criminal charges (if the constitutional court uphold this ruling.

      Johan5417 - 2013-01-16 17:13

      No you are wrong. The sections that were struck down only relate to over 12 and under 16.

      christoffvstaden - 2013-01-16 18:40

      @frank I reread the judgement from another newspaper that deals more in depth with it and you are right about the other articles. I somehow don't understand what you mean by an 18yr old having sex with a 12yr old - I think the age categories are still relevant, meaning 12-16 is a specific group, 16-18 another group. I somehow think you have the idea that the different age groups have been scrapped and made into 1 age bracket? Surely if the age of consent for an adult is 16, and now all of a sudden an 18 yr old can have sex with a 12 yr that would imply that we have reduced the age of consent for adults to 12? There is no way that can happen. But I can logically see that 12 - <16 can be dealt with as a group and 16 onwards as another group as the law has to be made around the 16 yr consent for adulthood.

      christoffvstaden - 2013-01-16 19:06

      @frank So the way I've figured this is that decisions are made around the 16 yr old adult consent. You have a group younger then 16 and a group older then 16. I can see that 16 - 18 yr old article is irrelevant as 16 and older is above the adult consent anyway. I can see that 12 -16 is relevant as it falls under the 16 adult consent, but I cannot see how a person older then 16 can have sex with someone younger then 16 as that would come down to an adult having sex with a minor. The 2 yr younger article been scrapped comes down to an 18yr old not allowed to having sex with someone younger then 16, which again makes sense as they are both considered adults by means of the 16yr old consent. Making sense? What do you think?

  • frank.cornelissen.1 - 2013-01-16 14:53

    What a bunch of rawhide cretins! This is what arises when you let a bunch of liberal bunny huggers loose in the judiciary where cold, hard facts and logic should prevail. These idiots are inclined to copious amounts of hugging and touching, running naked in the moonlight and polishing their auras! What a bunch of idiots!

      diana.gill.18 - 2013-01-16 15:18

      Unfortunately we all living in the NEW freaking era of an absolute democracy and total allowance where conservatism is not welcome.

  • ofentse.thole - 2013-01-16 15:14

    This generation is doomed for real

      Johan5417 - 2013-01-16 17:13

      Why because they are allowed to kiss each other

  • diana.gill.18 - 2013-01-16 15:16

    After all its better to sexually educate our teenagers than to deal with unwanted pregnancies in 10 out of 10 cases. As well they should have raised up one more issue about allowing those wannabe adults to marry at the age of under 16.

  • Dagbekruiper - 2013-01-16 15:19

    Children should not bonk. But lets build a nation!!!!

  • shanleigh.sewsanker - 2013-01-16 15:20

    there will come a day when a child realises that his/her mother was 14 years old he/she was born.

      jannie.beirowski - 2013-01-16 15:49

      You agree his/her mother was uneducated in sex? Does the wrong of the mother therefore authorise the wrong of the child? THis ruling is against having sex and is trying to protect the whistleblower. Before this ruling the whistleblower was prosecuted alongside the accused and therefore they did not want to talk. Now they may talk without being part of the guilty party and this may reduce the repetition of sexual activities by a guilty party because his sexual "partner" may talk.

  • stan.luthuli - 2013-01-16 15:21

    So 16 year old Josh bonks 13 year old Mary and that's okay... a year later, 17 year old Josh bonks 14 year old Mary, then it's illegal. Something isn't right here!!!

  • nevergrowupgirl - 2013-01-16 15:28

    Great stuff. So children will now be able to ignore their parents even more. This is opening up a Pandora's box of mental health issues, sexually transmitted diseases, and a whole new wave of unwanted pregnancies, unwanted babies and fatal abortions. Because the way I see it, "if the law says it is ok, who are my parents to object"... The youth are already struggling to keep heads above water with schooling. Throw on top of that all the drugs already in school, and now the ability to have sex without understanding the implications... So many parents never speak to their children about the facts of life. This is going to end in chaos and a new epidemic of sexually transmitted diseases the tax payers would have to cover. It sickens me.

      Salome Lindsay - 2013-01-16 16:14

      Now we will see how the % of teenage pregnancy will rise. Not even mentioning STD's.

  • linds.ronhouse - 2013-01-16 15:28

    Now the courts must decriminalize prostitution. What's wrong with two consenting adults having sex in exchange for money? What about people who want sex but without the complications of a relationship? It's a free country. Let people choose their lifestyle.

      Tshepo Mongale - 2013-01-16 15:36

      Linds Ronhouse, what's worrying you unless you are prostitution addict?

      linds.ronhouse - 2013-01-16 15:41

      While at that, grant conjugal rights to married people whose spouses are behind bars for non violent crimes.

      linds.ronhouse - 2013-01-16 15:47

      Tshepo, prostitution is the oldest profession and it will never stop. Many civilized democracies allow it. In fact the government of Amsterdam pays prostitutes to sleep with disabled people, as some of them are discriminated against by society and find it difficult to get sexual partners.

      christoffvstaden - 2013-01-16 15:47

      @linds.ronhouse Yes, you are absolutely right. Brazil has recently legalized it & SA will probably look at doing so later this year.

  • deirdre.maule - 2013-01-16 15:30

    I think what they are trying to prevent here is if a boy should kiss someone else and lets say they are both 14, and are "trying something" they saw on TV, then these kids should not be punished by going to prison or by being exposed to criminal justice elements such as the court, or prosecution, nowhere does it say they should not be taught right from wrong, just that they should not be subject to being criminalised. And hell I would rather have the opportunity to tell my kids he's doing wrong than having him land up in front of judge for kissing a girl ... Sexual Violence on the other needs a whole different set of rules, but even then the kids perpetrating these violent acts need to helped not hindered, while a difference can still be made on them.

      christoffvstaden - 2013-01-16 15:38

      "boy should kiss someone else and lets say they are both 14, and are "trying something" they saw on TV, then these kids should not be punished by going to prison or by being exposed to criminal justice elements such as the court, or prosecution" @Fafrican - You are 100% right, that is exactly what this law is about - you seem to be one of the few who understand it.

      Mandy Casey - 2013-01-16 16:29

      Underage children don't go to jail they are sent to a reformatory worst case senario. The focus should be on : prevention is better than cure.

      tinei.mboti - 2013-01-16 17:08

      Please do not use extremes to support your point of view. Which boy or girl ever winded up before a judge for kissing?

  • - 2013-01-16 15:33

    Anc short of voters?

      Tshepo Mongale - 2013-01-16 15:37

      Vernon Bosch?? pleaase now. all election results never came ur way.

  • tinei.mboti - 2013-01-16 15:42

    I find this apalling. Does this mean therefore that kids can now appear in porn movies for kids? I have heard 9 year-olds say 'I like sex', just because they have watched too much of a Britney Spears and Rihanna video. Is this consent? Kids who have sex with other kids are only 1 step away from having sex with older teenagers and then with adults. Where do you draw the line?

      Johan5417 - 2013-01-16 17:17

      No there are other laws dealing with child porn.

  • MissBabyG - 2013-01-16 16:16

    this is really a disgrace to this country.when i was young playing meant going outside and play with your friend and this day and age everything is computerised,now they bring this new law about consensual sex amonngst teenagers, that is not encouraging safe sex they are so many dieases out there that they must keep in consideration. So Dissapointed!!

  • bryan.culross - 2013-01-16 16:24

    To all of those that have condemned the judgment I request them to please explain what they believe should happen when / if a teacher discovers 2 underage children (say two 14 y/o's) engaging in a sexual actvity? What wud u suggest if it was French kissing? Oral sex? Full sex?

      tinei.mboti - 2013-01-16 16:50

      Dear Bryan. No one is saying kiddie sex does not happen. The problem is in the implications of codifying it in law.

      Johan5417 - 2013-01-16 17:22

      Do these people who envisage the end of the world with this judgment have any idea what kids do? Nothing is going to change. Kids will experiment and no law is going to stop it. To expect the law be an enforcer is wrong. These are parental duties. It should not be left to the criminal justice system to deal with. Two kids are caught engaging in a consensual sexual act must both be sent to prison. If so, for how long? It was a stupid law that the idiots in parliament passed. They were told it was stupid and yet they persisted with it.

  • Mandy Casey - 2013-01-16 16:27

    Perhaps it may get them away from the playstation for a while.

      tinei.mboti - 2013-01-16 16:48

      There is sex on playstation too, dear Mandy.

  • tumelo.matlotlo - 2013-01-16 16:44

    Look at those who welcomed the decision.."organisations working with children" (age 11-16).Not teenagers of young adults. How would you feel that a 40 year old man had a consensual sex with your 11 year old daughter? Will you be proud that you taught her to negotiate a condom with him? I'm also speechless...

      Johan5417 - 2013-01-16 17:12

      That is rape. A child under 12 cannot consent to a sexual act. The judgment did not alter that.

  • Blizzard - 2013-01-16 16:53

    I don't care how you try to spin this... it is wrong.

  • tinei.mboti - 2013-01-16 16:58

    Is this the conversation you want with your son? Dad: How was your day at school,son? Son: It was OK, dad. Played cricket, then had sex with Jane, then had biology and music lessons afterwards. Dad: Did you enjoy having sex with Jane? Son: Yeah, she is OK. Bertha last week was the best, though. She is so experienced.

      Johan5417 - 2013-01-16 17:23

      The judgment did not say children must commit sexual acts. It just decriminalized them.

  • anaska - 2013-01-16 17:08

    "Judgement" this word should not be used in this horrenduos matter and just the government should introduce more activities for these children - all they have to do it try and put on their "thinking cap"

  • Winile Ngidi - 2013-01-16 17:12

    the law wrong by sayin children should be jaild 4 jst kissing and havin sex but i blv a better solution shudve been found. we cant afford to d 12 yr olds to have sex even adult cant control thenselves how much more with 12 yr olds

  • tinei.mboti - 2013-01-16 17:20

    Jimmy Savile would be jerking in his grave at this so-called 'judgment'

  • Seponi Anna Mfikoe - 2013-01-16 17:21

    i welcome the judgement considering that girls as young as 12 can have an abortion, get contraceptives without their parents consent...meaning they do have sex and the health department has been protecting them so why must we panick when they remove the law that criminilises them fo having sex.. and looking at it the law was never being used because even 13year olds got pregnant and had kids.. if u wana fight fight every single law that gave kids rights to have sex....*my opinion dont shoot me*

  • harry.saunders.7712 - 2013-01-16 17:40

    open the gates and the saints tru........let defloration begin enmass

  • ryan.cosgrave - 2013-01-16 17:50

    "Rapcan applauded this as a recognition of children’s right to dignity, privacy and their right to participate in decisions about sexuality." I'm sorry but a child under 16 should not have to participate in such decisions, yes ease up on the law, don't punish them for kissing and all those little things, but this law is just unbelievable, this law takes away any reason for the child not to have sex, obviously if they had sex at such a young age, their parents aren't teaching them well enough, and now the punishment goes into the hands of those parents? how are you going to punish them? ground them? scream at them? what does the child have to fear now? "well they will just shout at me or ground me, its okay" is that what you want your child to think? instead of wasting time on this rather use the effort and money to improve sex education and to explain the consequences to the child. A child under the age of 16 is not psychologically or emotionally ready to make such a decision, i would hope a organization who is there to help kids would understand that, but obviously not. Don't get me wrong, don't send the kids to prison, but imply a fine to the parents or make it compulsory the child go see a counselor, but don't just do nothing. I am 16 and i am still psychologically growing and all i have to say is that the kids that land up in this mess are the kids who are allowed to do what they want, now how is that kids parents going to enforce punishment?

  • wessel.jordaan.3 - 2013-01-16 20:05

    @simphiwe...yup can hear,see and feel where you come from big MAN...heard of aids and unwanted births....for f..k sake grow up you idiot. Idiots like you make us just what...AFRICA?!!!!

  • marshall.paton.9 - 2013-01-18 13:01

    Is there a loop hole for sexual predators and perverts abd paedophiles to get away with sexual violations and rape of minor persons(children)?.Basically the rulinhg allows minors to have cosensual sex with each other without being arrested,charged or prosecuted. Somehow I don't feel comfortable wuth this ruling. Any opinions?

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