Judgment reserved in child sex case

2013-05-30 20:45

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Johannesburg - The Constitutional Court reserved judgment on Thursday on whether it was unconstitutional to criminalise consensual sex between children between the ages of 12 and 16.

This meant the judges would consider arguments submitted to them by the applicants - the Teddy Bear Clinic for Abused Children, and Resources Aimed at the Prevention of Child Abuse and Neglect (Rapcan).

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

The clinic and Rapcan had asked the court to confirm a judgment of the High Court in Pretoria that sections 15 and 16 of the Sexual Offences Act are unconstitutional because they require the prosecution of children involved in consensual kissing, petting and penetrative sex.

They were not challenging laws that prevent sex between adults and children, nor any laws related to sex without consent.

Stephen Budlender, for the Teddy Bear Clinic, said the clinic and Rapcan took no issue with the core aims of the act - to protect children.

He said the problem lay with criminalising consensual sex.

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

If a child of that age told someone that they were having sex, whether while they were seeking advice on contraception, or on other sexual health matters, the person they told was obliged to report them to the authorities.

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

In this way, 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 talk about sex, in terms of the current law, they are admitting to engaging in a criminal offence.

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. It branded activities which might be part of normal development as "abnormal and deviant".

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

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

Children of this age group having consensual sex should not be equated with child molesters or child rapists.

Society has failed

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

If a girl became pregnant she was targeted for prosecution, which was unfair. She was already facing the problems of early motherhood and a 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.

Vincent Maleka SC, for the justice department and NDPP, defended the state's position, saying the laws were there to protect children in the light of parenting failures and widespread sexual abuse of children.

"We must accept our society has failed in parenting. Not every household enjoys parenthood," Maleka said.

But Chief Justice Mogoeng Mogoeng wanted to know why it was necessary to go as far as prosecuting teens who had consensual sex.

"I don't know why children should face the police, social workers, prosecutors, magistrates, in order for those issues to be dealt with," he said.

Maleka said: "If we tell a child 'fact is fact, it's an offence', they are more likely to take it more seriously," he submitted.

Another friend of the court, the Justice Alliance SA, said Parliament was in a better position to remedy the issue.

It did not support prosecutorial involvement, or children's names being put on a sexual offenders' register, but it also did not support legalising penetrative sex for teens of that age.

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