ConCourt: Parts of child sex act unconstitutional

2013-10-03 14:33

Bloemfontein - The criminalisation of consensual sexual conduct between consenting adolescents is unconstitutional, the Constitutional Court has ruled.

The court confirmed a lower court's order that sections 15 and 16 of the Criminal Law Amendment Act, which relate to sexual offences, were unconstitutional.

The unanimous judgment, written by Judge Sisi Khampepe, was published on the court's website on Thursday.

The sections infringed on the rights of adolescents, aged between 12 and 16, to dignity and privacy, and further violated the best interest principle contained in section 28(2) of the Constitution.

Developmentally normal conduct

Relying on expert evidence, the court concluded that the impugned provisions criminalised developmentally normative conduct for adolescents and adversely affected the very children the act sought to protect.

The court said the effects of the impugned provisions were found not to be rationally related to the State's purpose of protecting children.

"We must be careful, however, to ensure that, in attempting to guide and protect children, our interventions do not expose them to harsh circumstances which can only have adverse effects on their development,” said Khampepe.

She said the matter was not about whether children should or should not engage in sexual conduct, nor was it about whether Parliament should set a minimum age for consensual sexual conduct.

Khampepe said the court was concerned with a far narrower issue - whether it was constitutionally permissible for children to be subject to criminal sanctions to deter early sexual intimacy and combat the risks associated therewith.

Non-consensual sexual conduct

The judgment declared invalid provisions of the act that criminalised consensual sexual conduct between adolescents. The criminal prohibitions against non-consensual sexual conduct with children of any age remained in place.

Criminal restrictions against sexual activity between adults and older children on the one hand, and adolescents on the other, also remained.

The judgment suspended the declaration of invalidity for 18 months to allow Parliament to amend the provisions.

Khampepe ordered a moratorium on all investigations, arrests, prosecutions and criminal and ancillary proceedings (regarding adolescents) in relation to sections 15 and 16 of the act.

This remains until Parliament has remedied the defects identified.

  • Rodney Bevan - 2013-10-03 14:51

    12 yeqr olds can now legally have sex, why stop at 12, why not go the whole hog and take it down to 6? There's a damn good reason why anyone under the age of 16 should not have sex, they are too damn stupid to use precautions! Yes, I speak from experience. Watch the number of teen pregnancies skyrocket and then watch the benefits paid to them head for the moon. This is lunacy.

      Nosiphom Mazibuko - 2013-10-03 14:57

      But do you want to put them in jail for having sex - due to ill discipline - among themselves? Laws can never heal the rot of society. We should guide our children not to engage in the activity before time - not put them in jail because we have failed to teach them the correct values.

      Mlungisi Botha - 2013-10-03 15:27

      @Nosipho: Of course not jail - there's a billion ways to punish kids so as to get the message across (from grounding them at home to corporal punishment). But (and this is the point) you can't punish kids for doing something that's now been declared legal. In other words if your daughter (let's say she's 12) asks you to leave her room coz she wants some privacy with her 16 year old mate (male or female) you can't (or according to the justices, shouldn't) stop her because she's now legally entitled to do so. You could choose to go wash the dishes or take a slow walk around the block and hope it's all over by the time you get back...appalling isn't it?

      Nosiphom Mazibuko - 2013-10-03 15:53

      @Mlungisi -you are right there are ways of punishing children. Let the parents do it - not the courts - they cannot even deal with murderers - bring in children for bonking, then we will clog the system permanently. Parents should parent - government should govern - we are going so quick into a nanny state!@!

      Nosiphom Mazibuko - 2013-10-03 15:57

      @Mlungisi - your argument is disingenuous. By saying it is not a criminal offence (like everywhere else in the civilized world) for t12-16 year olds to bonk, does not necessarily mean they have a right to it. You as a parent still have the right to set your house rules for your children between 12 and 16. And if you want to give them privacy well its your choice, but you cannot run to the police station and get them arrested for having sex. The law previously compelled you to do so otherwise you would be arrested too!

      Bryan Culross - 2013-10-03 16:54

      Its not about legalising under-age sex but rather about de-crimmalising it. There is a big difference. Surely, one wud want their under-age child who had engaged in sex (with another under-age child) to receive counselling rather than be subjected to the criminal justice system. This, as far as I can see is all the he Con Court judgment is all about.

      Mlungisi Botha - 2013-10-03 17:39

      @Nosipho: Disingenuous? No no no absolutely not. It's obvious from what I've been saying that I would not accept that situation under any circumstances. What I said was that irrespective of what you (or I) in our homes might think about under 16s doing grown up things, as far as the law is concerned there is NOTHING ILLEGAL about sexual relations between consenting under 16s. You can punish them for breaking your house rules but NOT because they've broken the law - they are within their legal rights and that's what the con court was confirming.

  • Mlungisi Botha - 2013-10-03 14:52

    So if I catch my 13 year old boy playing "ping pong" with his 12 year old girlfriend I should quietly close the door and tip toe away and watch TV until they finish??? I can't wack the sh**t out of them coz that's assault and it's not illegal for them to do so coz the supremos have deemed their behaviour within the law??? Absolute crap...I'll have them running out of there dressed or undressed in double quick time. As for the learned justices....we're still in 2013, m'lords, and not yet in 2050.

      Sean Rossouw - 2013-10-03 15:17

      No, you are just not allowed to put him in jail for it, read the 8th paragraph

      Maretha Mineur - 2013-10-03 15:57

      You are really talking the biggest load of rubbish. I hope you are just trolling. Don't seem to understand the difference between discipline and illegal acts for which people can be prosecuted. Honestly, YOU should not have been allowed to procreate!

      Jean Smith - 2013-10-03 16:00

      Nice ....... 12 to 16 is still a child ... that is simply a fact.

      Themba Khumalo - 2013-10-03 16:07

      Maretha you are over reacting. You are the one we should sterilise.

      Mlungisi Botha - 2013-10-03 18:29

      @Maretha: Shame on you. If I was your English teacher I'd give you 0 out of 10 for comprehension and 10 out of 10 for stupidity. It's obvious from your comment that you haven't the foggiest idea about what's being discussed.

      Maretha Mineur - 2013-10-04 04:16

      @ Mlungisi: The Bible is right: Do not answer the fool.......If comprehension were a brick wall you would miss having walked straight into it. Maybe you just have a language problem. Hope springs eternal.

  • Raymond Kok - 2013-10-03 15:20

    i will pray for anyone with children under the age of 9 because there is no way that this is good for anybody we will sit with babies having babies and grandparents becoming parents all over because who will care for these babies babies ,our poor poor south africa we are so s......d

      Ngwana Gae - 2013-10-03 16:46

      Please read and understand this ruling

  • Gugu G Nkosi - 2013-10-03 15:30

    Adolescents of today are in desperate need of a firm hand of discipline, so if sending them to jail is that firm hand of discipline then so be it!

  • George Bennie - 2013-10-03 15:33

    Finally some sanity. I don't condone sex between minors, but illlegalizing is like stopping a starving kid from begging for food. Our jails are full enough. Why should horny teenagers be criminalized? Well done CC. Good luck parents.

      Bryan Culross - 2013-10-03 16:58

      So all the thumb-downers would prefer a child that engages in under-age sex to rather be prosecuted as a criminal and maybe end up in jail? Warped logic to my mind.

  • Shaun Westley - 2013-10-03 16:01

    'whether it was constitutionally permissible for children to be subject to criminal sanctions to deter early sexual intimacy and combat the risks associated therewith.' - That is the issue @ hand. The constitutional court is 100% right. As if any form of prohibition has ever been effective. How were they planning on policing this? What a ridiculous idea

      Maretha Mineur - 2013-10-04 04:19

      Exactly! Ridiculous to start off with, this unworkable law.

  • Sadrick Lottering - 2013-10-03 16:23

    Teen: But, Officer! It was okay yesterday? Officer: Yes, today you're 17 and going to jail. Teen: Damn should have waited a year for her. Officer: No, it multi-charges Teen: what! Officer: Yes, Josline, the 12yrs old's mother also opened a case of statutory rape. Should not have slept with her 19yrs old sister. Teen: goddanmit!!!! Lolololololololol

  • Kevin Bromfield - 2013-10-03 16:37

    Children should not be having sex, we must not allow it!!!!! It will cause a lot more poverty!!!

  • Molebowe Tshepang Sammy - 2013-10-03 17:06

    I wonder whr our country wil end up...myb soon rape wil b allowed re ke section Act 21 in constitution of Law

  • Derek Yegambaram - 2013-10-03 18:39

    Unfortunately more proof that the writers of the Law in South Africa have lost the plot

  • Julius A Cretten - 2013-10-03 21:08

    Children do NOT have the fore-knowledge to be able to understand the consequences of their acts. This applies to all children before the age of 18 years. Who is going to feed, clothe and educate all the children born out of wedlock to all these "children", The SA taxpayer, of course. No 12 to 16 year old will be able to go to work to support his "family", since it is against the law to employ a child under the age of 16 years. Further what about the father's and mother's right to an education if they must now bring up children borne out of their sexual relationships. And last but by no means least, SA has the highest infection rate of HIV in the world, are we now expected to allow our children to be infected just to satisfy some goofy law about the unconstitutionality of their sexual relations with other children of their own age. Sorry, but the guy that makes one of my children pregnant before he marries her had better be wearing a shotgun-proof pair of underpants, because he will get a dose of double-0 pellets where it will do the most good. and to hell with the law

  • ya.hova.1 - 2013-10-03 22:19

    And so the moral fibre of society continues to unravel.

  • Dde Gov - 2013-10-03 22:38

    An idea why don't we educate our children about the facts of sex, STD's. SA has a very high HIV infection rate that can now be easily spread amongst our young children who do not fully understand the responsibilities associated with having sex. Another uninformed decision.

  • Ashleigh Christians - 2013-10-04 11:11

    the article clearly identifies the rights affected as the right to dignity and the right to privacy.

  • Rosalind Roca Hulley - 2013-10-04 11:57

    What is happening to South Africa!!!!That is y we have so much sickos in our Country cos our courts are passing Laws of this kind,its sick....

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