Criminalising sex is not the answer

Health minister Aaron Motsoaledi is set to meet justice ministry officials to rectify what his office terms “contradictions” in the Sexual Offences Act of 2007 and the Children’s Act of 2005. One law makes it legal for children of 12 and older to access contraceptives, and the other criminalises sex for youngsters of that age.

The Children’s Act, which states that no person may “refuse to sell condoms to a child over the age of 12 years — or provide condoms — free of charge” came into effect in April last year.

According to the regulations, contraceptives other than condoms may be provided to youngsters of 12 and older without the consent of their parents or caregivers. Another law, the Choice on Termination of Pregnancy Act of 1996, enables children of the same age to have ­abortions on their own.

Yet the Sexual Offences Act makes it illegal for any person to engage in “consensual sexual penetration” with children between the ages of 12 and 16. This Act was designed to address the sexual abuse of children, but in effect also makes it illegal for youngsters of those ages to have sex.

“We’re aware that the legislation doesn’t correspond,” said Eddie Mhlanga, chief director for maternal, child and women’s health. “We need to align the two Acts and have one message.” He asked: “Other than rare medical exceptions, what condition would children of 12 who need contraception have if they don’t have sex?”

Recently, children’s rights activists were outraged when it emerged that National Prosecution Authority head Menzi Simelane had used the Act to authorise the prosecution of at least two groups of children between the ages of 12 and 16 for having consensual sex — six learners from Mavalani High School in Limpopo and three pupils from Johannesburg.

Simelane later withdrew charges against the Johannesburg pupils and instead compelled them to complete a “diversion programme”.

Worsening the problem
According to a Medical Research Council study, a quarter of South African children of 13 and younger have sex, with a mere 10% of them accessing contraception.

It said that by the age of 15, 37% of young people are sexually active, with the overall figure for high-school learners being just below 50%.

“Trying to criminalise teenagers having sex would worsen this problem and absolutely discourage teenagers from accessing sexual and reproductive health services, as they’ll fear being reported,” said Helen Rees of the Wits Reproductive Health and HIV Institute. “Can you imagine prosecuting more than a third of school-going youngsters? Children having sex at a young age need support, not criminalisation,” she said.

Public health experts argue that the best way to deal with learners having sex is to address the social pressures that result in them being sexually active, improve life skills programmes and increase their access to contraception — including making condoms available at schools. “We have evidence that children as young as 12 have sex. We need to protect them from both pregnancy and HIV,” said Barbara Klugman, of Wits University’s school of public health. “Condoms are the only form of contraception that also protect against HIV infection. Learners should have access to them.”

Rees pointed out that in South Africa between one out of four and one out of three pregnancies, depending on the geographical region, are teenage pregnancies.

She said pregnant teenagers are at high risk of contracting HIV. “HIV infection peaks during the late teens in our country. It increases from a relatively low percentage to as high as 30% between the ages of 13 and 20 years. If we allow teenagers to be pregnant, we therefore also allow them to contract HIV.”

Pregnant women’s chances of contracting the virus are double that of those who are not pregnant, owing to “hormonal changes and the fact that many pregnant women don’t use condoms during sex because they’re not at risk of falling pregnant,” said Rees.

Women who contract HIV during pregnancy are much more likely to transmit the virus to their unborn babies than those who contracted it prior to falling pregnant. “By denying them access to condoms, we are failing this generation,” said Rees.

Current school education
The departments of health and education have acknowledged that current school sexuality education programmes are inadequate and they insist they’re revisiting the curriculum. They plan to launch a new programme in early December, but are unclear about whether the revised syllabus will recommend that contraception be accessible at schools.

According to the deputy director general of health, Yogan Pillay, the issue requires “wide consultation”, including teacher unions.

However, experts specialising in adolescent health complain that “conservative forces” in the departments are “not embracing human rights approaches to sexual and reproductive health”. One source, who asked not to be named, said: “There are officials who tend to hide behind the conservative approach of abstinence and being faithful, which does not work.”

A commissioned learner pregnancy strategy, based on human rights’ approaches endorsed by the World Health Organisation and the United Nations Children Fund, was submitted to the education department more than a year ago, but the department has still not finalised it. According to department spokesperson Terence Khala: “The strategy remains an internal document” and the department is “continuing with consultation ­processes” on it.

“People fear that comprehensive sexuality education programmes and increased access to contraception for learners will result in them becoming promiscuous, but several studies have shown that the opposite is true,” said Marion Stevens of Women in Sexual and Reproductive Rights and Health Associates (Wish). “Children receiving such education from as young as five tend to engage in less risky sex, have fewer violent sexual encounters and are less likely to fall pregnant as they’ve been empowered to make informed choices,” she said.

Educationists point out that life skills programmes in South African schools are not uniform and teachers often feel ill-equipped to implement them. An evaluation of the impact of HIV life orientation programmes in Gauteng schools found that half the teachers concerned had not received necessary materials to teach the courses from the education department and that many of those who did felt awkward teaching pupils about HIV.

According to Stevens, there is a “generation” of parents and teachers who are uncomfortable with their own sexuality and who were themselves not taught how their bodies worked.

“They have no culture of negotiating safer sex, yet we expect them to address the mirror of themselves that they see in their learners,” she said. “That’s impractical. We first need to ensure that educators understand and are comfortable with the curriculum before they can teach it effectively.”

Why don’t parents talk to their children about sex?
According to the Medical Research Council’s Rachel Jewkes, South Africa is in desperate need of teenage parenting programmes. “When learners fall pregnant we are quick to tell them off, but we don’t equip them with skills to raise their children,” she said. Jewkes said young mothers often come from vulnerable families where they do not necessarily experience good parenting. “Often a 15-year-old who falls pregnant has a mother of 30 and the child merely copied what the parent did.”

Jewkes said mothers and fathers need assistance to talk to their children about their emotional needs. “We need to look at the bigger issue of parenting. It will be easier to talk to your child about sex if you’re in touch with his or her feelings.” Young parents should look at the similarities between themselves and their children. “Lots of 30-year-old parents with adolescents are single and date, yet they struggle to engage their children on the issues involved,” she said.

“Just because parents don’t talk to their children about relationships doesn’t mean the children won’t have sex,” she said.

More pros than cons for condoms
According to Helen Rees from the Wits Health and HIV Institute, the ideal contraception for learners is condoms backed up by emergency contraception (the morning-after pill). “Condoms protect against both pregnancy and HIV and emergency contraception protects against pregnancy in cases where condoms failed,” she said.

In reality, however, many teenagers are not in a position to negotiate safer sex. In those cases oral contraceptives (the pill), contraceptive injections or intrauterine devices are recommended.

Inserting intrauterine devices in women who have not been pregnant is more complex than in those who have been pregnant and health workers may need to be retrained in this skill.

Also, an emerging body of evidence points to hormonal contraception, such as the pill and contraceptive injections, particularly Depo-Provera, increasing young people’s risk to HIV infection. “The research is, however, not yet conclusive and until then we need to make use of what we’ve got,” said Rees.

Love life safely
LoveLife, with the department of health, has youth programmes that include sex education components in more than 6 300 schools. The programmes are run by 18 to 25-year-old peer educators known as “groundbreakers” and “mpintshis.” Activities focus on sex education rather than providing contraception.

For this purpose, loveLife plans to train all clinic staff, including receptionists and cleaners, to be “youth-friendly” in more than 4 000 government health clinics in the next five to 10 years. The department will fund the process in collaboration with the Anglo-American Chairman’s Fund.

The programme is being launched in Kwazulu-Natal. According to loveLife senior technical adviser Chakanga Banda, health clinics are better equipped to deal with the youth when “everyone, and not just the health staff, is trained”, as they don’t have to face judgmental administrative staff who may not put them in touch with nurses and doctors quickly enough.

Mia Malan works for the Discovery Health Journalism Centre at Rhodes University

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Mia Malan
Mia Malan
Mia Malan is the founding director and editor of the Bhekisisa Centre for Health Journalism at the Mail & Guardian. She heads up a team of fifteen permanent and freelance staff members. She loves drama, good wine and strong coffee, not necessarily in that order.

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