Sex offender? Legally, an uncertain future lies ahead for this pregnant 15-year-old in Khayelitsha, Cape Town. (David Harrison, M&G)
Legislation that could see teenagers charged for having consensual sex is being challenged in the North Gauteng High Court.
Sexually active South African teenagers find themselves in a vulnerable position: 49599 pupils fell pregnant in 2008 – the last year for which figures are available – according to the department of basic education. The Human Sciences Research Council conducted a survey on HIV prevalence in South Africa in 2008 and the prevalence for children between the ages of 15 and 18 stood at 4.5%.
The Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 provides for the state to prosecute consensual sexual activities between teenagers 12 years and older, but younger than 16.
Two non-profit organisations, the Teddy Bear Clinic for Abused Children and child victimisation support group Rapcan, have challenged the constitutionality of these laws. The applicants say the legislation threatens children’s access to health services by criminalising sex.
The state is opposing the application and argues the law will be applied with discretion to protect children and that it has a duty to protect children in the face of high pregnancy rates and HIV transmission.
”Diversion programmes”
In January 2011 a media report alleged there were 57 pregnancies at Mavalani High School in Limpopo. In August that year the National Prosecuting Authority authorised the prosecution of five pupils, one of whom was pregnant. The pupils appeared in court, and were charged with consensual sexual penetration while under the age of 16.
At the time, NPA spokesperson Mthunzi Mhaga said that the NPA was concerned that ”this problem seems to be continuing unabated as we continue to receive similar cases. The common denominator is alcohol and unprotected sexual intercourse.”
The pupils were eventually sent to ”diversion programmes”, which can include an apology to the victim, community service and counselling. Completing the programme means that the children will not have criminal records.
At the heart of the matter is the question of how to ensure that children have safe sex. ”The Act will push healthy, normal sexual behaviour underground. We need to create a space where children can discuss sex,” says Vivienne Mentor-Lalu, advocacy co-ordinator for Rapcan.
Lizette Schoombie, director of the Teddy Bear Clinic, said children having consensual sex do not belong in the same programmes as children who are sex offenders. ”They need psychological support, not rehabilitation.”
Right to dignity and privacy
Teddy Bear and Rapcan argue that the Act is at odds with many existing laws aimed to protect children’s constitutional rights, including the right to dignity and privacy.
They say it is emotionally distressing for children to be charged for having consensual sex. If charged, children must reveal details of their intimate sex acts to the police, their parents, probation officers and magistrates, violating their right to privacy.
The fact that the Act forces adults to report consensual sex between children – combined with children’s fear of being charged – could deter children from accessing health services, such as contraceptives, reproductive health counselling, abortion as well HIV testing and counselling.
Should a child be convicted, his or her name will be entered into the National Sexual Offences Register. Applicants argue that this will harm children’s dignity and limit employment opportunities.
The Women’s Legal Centre (WLC) and the Tshwaranang Legal Advocacy Centre – which acted as advisers to the court during the hearing – said girls are disproportionately affected by the Act.
Sections 15 and 16
Sanja Bornman of the WLC says that, according to the Criminal Procedures Act, where an offence cannot be proved, the state is compelled to seek conviction on a lesser charge. So, after failing to prove rape or sexual assault – which is likely considering South Africa’s low prosecution rate in sexual violence cases – a girl can then be charged with statutory rape or statutory sexual assault in terms of sections 15 and 16. This is because both teenagers are considered offenders if the sex between them is believed to be consensual. This will deter adolescent girls from reporting sexual violence.
Sections 15 and 16 are also in conflict with the Choice on Termination of Pregnancy Act, say the advisers. They point out a contradiction – when a child seeks an abortion, healthcare workers will be compelled by the Sexual Offences Act to report the teenager for having consensual sex. Girls will be deterred from seeking abortions, they say.
The advisers also argued that girls are more likely to suffer stigmatisation and stereotyping as a result of sections 15 and 16 of the Sexual Offences Act. A pregnant girl is a far more obvious target for prosecution than boys, say the advisers.
The state, on the other hand, says it will implement the Sexual Offences Act, subject to children’s best interests. It says an arrest is an absolute last resort in terms of existing legislation. The Child Justice Act diverts children from the criminal justice system and safeguards children prosecuted in terms of sections 15 or 16. Such children are eligible for diversion programmes and, upon completion, will have no criminal record and his or her name will not be entered into the National Sexual Offences Register. The state said that no child’s name had as yet been placed in the register because of a section 15 or 16 offence.
The state said prosecutorial discretion was reflected in the low rate of child prosecution. Since 2007, when the Sexual Offences Act came into play, the national director of public prosecutions has only authorised the prosecution of children for consensual penetrative sex in 10 cases. In all cases, the children were sent to diversion programmes.
Rules and boundaries
The state called the applicants’ argument against compelling people to report children having sex to the police as ”bizarre”.
”It appears that the applicants would rather have sexual offences against children go unreported and therefore unresolved,” said the state.
The Justice Alliance of South Africa (Jasa) supported some of the state’s arguments. Trudie Broekmann of Jasa said that high rates of teenage pregnancy and the dangers children faced when becoming sexually active necessitated sections 15 and 16. ”We think rules and boundaries are an important part of growing up and the legislation empowers adults to lay down the law.”
Jasa added that a defence built into the Sexual Offences Act protected teenagers who wanted to engage in exploratory sexual behaviour. If the age difference between two children is less than two years, they may use this as a defence should they be charged in terms of section 16. This, argues Jasa, gives teenagers room to explore without having penetrative sex.
At the time of going to print, neither the National Prosecuting Authority nor the department of justice and constitutional development had responded to requests for comment.
Facts of life
Sixteen is the age at which a person can legally consent to sex. Anyone younger than 12 cannot consent. Sections 15 and 16 of the Sexual Offences Act makes it a crime for children 12 and older, but younger than 16, to have sex.
The Act defines consensual sex acts between children, not including penetration, to be statutory sexual assault – including kissing, petting and bodily contact like cuddling and hugging while fully clothed.
In terms of penetrative sex between children, the final decision to prosecute lies with the national director of public prosecutions. For non-penetrative sex, only the provincial director of public prosecutions can authorise the prosecution.
The Act also stipulates that children found guilty must have their names entered into the National Register for Sex Offenders.
It also compels any person who is aware of consensual sexual activities between children to report those children to the police, or possibly face a five-year jail sentence, or a fine and a jail sentence. – Heidi Swart
Heidi Swart is the Eugene Saldanha Fellow in social justice reporting, sponsored by the Charities Aid Foundation, Southern Africa.
