South African children above the age of 12 cannot be denied access to condoms, yet anyone who knows that a sexual activity is taking place between children aged between 12 and 16 years has the duty to report it to the police.
Papers were filed on Monday to the North Gauteng High Court by the Teddy Bear Clinic and Resources aimed at the Prevention of Child Abuse and Neglect (Rapcan) to challenge this and other anomalies in the Sexual Offences Act.
The papers challenge the unconstitutionality of criminalising children between the ages of 12 and 16 years for engaging in consensual sexual activity.
The two parties have asked the court to declare section 15 and 16 of the Sexual Offenses Act unconstitutional as it gives provision for children involved in consenting sexual acts to be criminalised.
The two organisations say that it is an anomaly that under section 134 of the Children’s Act, children above the age of 12 years can be given condoms but under section 15 of the Sexual Offences Act they may be reported for engaging in consensual sexual intercourse.
Ann Skelton, from the Centre for Child Law, which is representing the two organisations, said this was a demonstration that the system did not know what it wanted to do.
“On the one hand you are giving condoms to children because you want to make available to them reproductive health services but on the other hand you are subjecting them to criminal justice system for having consensual sex,” she said.
The dire consequence of this, explained Skelton, was that the names of children prosecuted for this crime could be placed on the sexual offenders’ register.
‘Close in age’ defense
Another anomaly in the law was the ‘close in age’ defense, which states that “in consensual sexual acts that do not include penetration, it is a defense to say that both accused persons were children and the age between them is not more than two years”.
But this defense does not apply in cases where there is penetration, Skelton told the Mail & Guardian.
“This defense should be more broadly applicable and should also apply in cases where there has been penetration,” she said.
Lizette Schoombie, director at the Teddy Bear Clinic said the clinic was not condoning sexual activity among teenagers but wanted to acknowledge that it was happening and to come up with better ways of dealing with it instead of criminalising children. She explained that the applicants were not saying that children below the age of 16 years had the “right” to have sex.
Children who are arrested for this crime are often sent to the Teddy Bear Clinic’s diversion programme.
“But diversion is not always the answer in cases where the act is consensual, because it does not entirely protect the child from the justice system. The child can still be questioned by police and can still be detained under certain circumstances,” said Schoombie.
She explained that the court papers where not filed because of the Jules incident but it was cited as an example of how the system failed the children.
The M&G reported that national director of public prosecutions Advocate Menzi Simelane had decided to charge all three parties involved in the matter with statutory rape.