ConCourt hears child sex law case

2013-05-30 15:58

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ConCourt hears child sex law case

2013-05-31 08:14

The Constitutional Court heard argument on Thursday on an application to confirm an order that consensual sexual conduct by children between 12 and 16 should not be a criminal offence. Watch.WATCH

Johannesburg - The Constitutional Court heard argument on Thursday on an application to confirm an order that consensual sexual conduct by children between 12 and 16 should not be a criminal offence.

The application, by the Teddy Bear Clinic for Abused Children and Rapcan, concerns the constitutionality of provisions of the amended Sexual Offences and Related Matters Act.

The two organisations successfully challenged the constitutionality of certain provisions of the act in the North Gauteng High Court in Pretoria, and hoped the Constitutional Court would confirm that court's judgment.

The high court declared sections 15, 16, and 56(2)(b) of the act unconstitutional, because they criminalised certain children for engaging in consensual sexual conduct with other children, according to papers filed.

Representing the Teddy Bear Clinic, advocate Geoff Budlender said the clinic and Rapcan took no issue with the core aims of the act - to protect children - but the problem lay with criminalising consensual sex.

Because the act criminalises consensual sex, it made it harder for children to seek advice and support related to their sexuality.

Telling anyone they were having sex - whether while they were seeking advice on contraception, or on other sexual health matters - obliged the person they had told to report the sexual activity to police.

"These provisions limit the rights of children," he said.

State law enforcement authorities, such as police and prosecutors, became involved in matters which were ordinarily dealt with in the family or community.

If children talked about sex, in terms of the current law, they were admitting to engaging in a criminal offence.


The respondents are the minister of justice and the National Director of Public Prosecutions.

The two organisations submitted that activities, such as kissing, petting, some forms of cuddling, and sexual intercourse were widely practised by adolescents, were "developmentally normative", and contributed to positive and healthy development if conducted in ways that were consensual and respectful.

The provisions of the act being challenged unnecessarily exposed adolescents to the criminal justice system, marking them as criminals and sex offenders, they submitted; and it branded activities which might be part of normal development as "abnormal and deviant".

The two organisations submitted that the primary purpose of the provisions was to protect children from sexual exploitation by adults, which they regarded as "laudable".

They stressed that their case had no impact on the way the act dealt with non-consensual sexual activity with anybody - children or adults.

Non-consensual sexual conduct and all forms of sexual conduct with children under the age of 12 should remain criminalised.

They were also not trying to do away with the age of consent.

Budlender said it could never be said that children engaging in consensual sex should be treated akin to a child molester or a child rapist through criminalisation and having their names put on a sex offenders' register.

Michelle O'Sullivan, for friends of the court the Women's Legal Resources Centre and Tshwaranang, said girls bore the brunt of consensual sex being criminalised.

If a girl became pregnant, she was the one targeted for prosecution, which was not fair.

She was already facing the problems of early motherhood and disrupted education.

In a recent case involving two boys and a girl who had been found to have engaged in consensual sex, the girl did not return to school to write exams, but the boys did.

The girl also bore the risk of being called a "slut", and so criminalisation was worse for girls than boys, she submitted.

The matter continues.

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