This week, parliament’s portfolio committee on justice and correctional services debated possible amendments to the Sexual Offences Act; one of the proposed amendments being the decriminalisation of consensual sex between adolescents (children aged 12 to 15). Under the current act, it’s illegal for children 12 and older but younger than 16 to have consensual sex, kiss and fondle. In fact, it’s a prosecutable offense that could lead to a statutory rape charge (in the case of consensual penetrative sex) or statutory assault charge (in the case of kissing or fondling) or placement in the National Register for Sex Offenders. As you can imagine, opinion has been heated with one faction of parliament arguing against the (supposed) immorality of “allowing” adolescent sex, with others saying sexual experimentation is a natural part of adolescence.
When the law has been used
Back in 2011, then director general of the National Prosecuting Authority Menzi Simelane, authorised the arrest of six pupils from Mavalani High School in Limpopo for having consensual penetrative sex. Limpopo’s minister of health and social-development at the time, Dikeledi Magadzi, welcomed the decision, saying it would “act as a deterrent and help children to refrain from engaging in sexual activity”. All six children were later released with a warning after their arrest drew the criticism of various children’s human rights activists.
Should we jail kids for having sex?
There are no simple answers here. On the one hand, because of the psychological and economic implications involved, you could argue that sex is decidedly an “adult” thing. It’s just that serious. Legislation is such that the voting age, driving age and the age you can purchase alcohol is 18. Because all of these are understood to be “adult things”. So, with the prevalence of teenage pregnancy (an estimated 182 000 female high school children fall pregnant every year) and the high rate of HIV infection among young people, what message are we communicating by making provisions for adolescent sex? At 12 years old, has someone developed the cognitive maturity to have sex?
But sex is a natural part of adolescent development
There are other considerations. The proposed amendments come in light of a Constitutional Court judgement that found parts of the Sexual Offences Act to be unconstitutional. This was after the Teddy Bear Clinic (an NGO that rehabilitates and counsels abused children) made an application to the court to confirm an earlier judgement by the North Gauteng High Court.The court ruled in their favour, finding that the law infringed on adolescent’s right to human dignity and the right to privacy. And with good reason. Sex is probably the most intimate act two people can partake in. To then criminalise it and have adolescents narrate such an intimate act to police officials and, later on, a magistrate is intrusive. It also further stigmatises sexual development and renders it taboo. Besides, criminalising sex won’t deter adolescents from practicing it as much as the legal age of smoking stops them from buying cigarettes.
Parliament is set to take public consultations soon before officially making any amendments. They are now faced with the unenviable task of deciding whether to legislate adolescent sex (and risk the inevitable public backlash) or leave things as they are, and make criminals of consenting adolescents.
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