Gaining notoriety as the ‘kissing lawâ€, the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 has, in recent weeks, sparked teen outrage and threats of pubescent petting protests.
In an attempt to safeguard children against sexual abuse, legislators have — by clamping down on what has been termed ‘acts of consensual sexual violationâ€ on children between 12 and 16 years, which is now deemed statutory sexual assault — provoked widespread fury from teens who believe that their rights are being infringed by a misguided attempt to stymie their natural sexual development and exploration.
The Act’s definition of sexual violation includes what can be termed French kissing, petting, mutual masturbation and ‘direct or indirectâ€ contact of genitals, the anus, the female breasts and any other parts of the body that might cause ‘sexual arousalâ€ and ‘stimulationâ€.
‘This is total bullshit! Let’s band together and stop this law! It’s taking away our freedom of choice and is against our human rights,â€ writes Franki Murray (14) in the ‘Everyone Against the New Kissing Lawâ€ group she created on Facebook.
Since its inception on December 21 last year — days after President Thabo Mbeki signed the Act into law — the group has shown phenomenal growth, attracting more than 17 000 people.
Many are angry, some are snide, but generally there is a disarming sense of political engagement by the teenagers — many not yet 15 years old.
Daniel Colpo (14) creator of the ‘Stop the New Kissing Lawâ€ group, says he started it ‘to bring awareness to peopleâ€ about the Sexual Offences Amendment Act. He feels that ‘adults are out of touch with us … because we are kissing doesn’t mean we are going to have sexâ€.
‘I understand why the law is important. I think that it’s a good way to prevent rape. I just don’t think that they should ban teenagers from kissing in public,â€ says Colpo.
Dallene Clark, a researcher at the South African Law Reform Commission, says one of the aims of section 16 of the Act, which deals with the issue of statutory sexual assault, is the prevention of the sexual grooming and coercion of children by predatory adults and, sometimes, by other teenagers.
‘The allowance for a two-year age gap [between children who might be engaging in petting, feeling up or masturbation] acknowledges that there is sexual experimentation going on at that age. It does become a problematic power relation though, if, for example, you have a 13 year old and a 19 year old. If the age gap is greater than two years, those people are then guilty of sexual statutory assault,â€ says Clark, who feels the outcry concerning the Act ‘disingenuousâ€.
Prosecution for statutory sexual assault can, according to the Act, be instituted only by the ‘relevant director of public prosecutionsâ€, with all participants facing charges.
Vish Naidoo, South African police services national spokesperson, says it is unlikely that there will be a slew of teen arrests and fines in upcoming weeks. ‘Police will, generally, be using their discretion in interpreting the Act — luckily we’re not swayed by public perception and the media — and will be assessing situations to see if a genuine crime has been committed before acting,â€ he says.
While the Sexual Offences Amendment Act might be causing consternation among teenagers, and mobilising them politically, it has been lauded.
The definition of rape was extended to include male rape, extended to include all types of penetration, including forced oral or anal sex.
The legal age of consent for males and females, both heterosexual and homosexual, is now a uniform 16 years old.
Bestiality, necrophilia and flashing are now crimes. Children and the handicapped are protected from exposure to and participation in pornography
Rape survivors now have legal access to healthcare and post-exposure propholactics, and can legally pursue the HIV status of the perpetrator.