Criminalising teen sex is getting us nowhere

The Sexual Offences Act of 2007, which criminalises consensual sex and kissing from 12 to 16-year-olds, is not bringing about a reduction of HIV rates.

That was the consensus at the Mail & Guardian‘s Critical Thinking Forum held in Glenhove Conference Centre, Johannesburg on Tuesday evening.

And while most South African 15-year-old teenagers are HIV-negative, the problem is it doesn’t stay that way.

The controversial law is not only ineffective in reducing early sexual début, but stands in contradiction to the provision of contraceptives and termination of pregnancy services to teenagers. Tuesday’s event addressed this contradiction and brought panellists together to discuss the topic “Do adolescents have the right to have sex?”

Most participants expressed their displeasure with the act saying it added to the stigma sexually active teenagers already face when they access health services.

A teenager, who introduced himself by his nickname ‘Chief Justice’ asked: “What is your doctor gonna [sic] do? See you have an STD [sexually transmitted disease] and call 10111,” referring to the South African Police Service’s call centre.

Panellist and National Prosecuting Authority’s advocate Patamedi Mogale defended the Sexual Offences Act legislation and said it was designed to “protect vulnerable” children.

“We are on the receiving end when it comes to implementing laws you have made” he added.

Jules High School case
But Mogale added that the NPA does not prosecute “willy-nilly” and mostly uses “diversion programmes as consequences for sexually active teenagers under the age of 16”.

He referred to the Jules High School case where the three students filmed on a cell phone having sex were not given criminal sentences but instead asked to attend an educational programme.

However the decision to place the three teens in a three-month programme was only made after various rights groups protested about the statutory rape charges the trio faced.

Following the Jules High debacle, civil right groups Teddy Bear Clinic and Rapcan (Resources Aimed at Preventing Child Abuse and Neglect) filed papers in the North Gauteng High Court asking that the section of the Sexual Offences Act, which criminalises teen sex, be declared unconstitutional.

The legal action is continuing.

Why does a law that is hardly used matter?
“We can’t be complacent about what is codified in law,” said loveLife’s Programme Director Scott Burnett. He argued the Sexual Offences Act means sexually active teenagers can face the full wrath of the law, if authorities deem it is necessary. 

Early sexual activity, high rates of HIV and teenage pregnancy are more common in poorer areas and so Burnett said the law “further marginalises a very marginalised group, associated with poverty and inequality.

“The law makes teenagers more vulnerable. It does not protect the vulnerable as the NPA’s Mogale suggested,” he said.

In many rural areas, a culture of silence on sexuality exists, he said. A teenager who already faces difficulty accessing services may further think: “I’m framed as a criminal.”

“It only deepens sexual taboos,” said Burnett.

The silence around sex
“The first thing I want to share with everyone is that [young people] are having sex.” said the youngest member on the panel, loveLife’s Lerato Moyahi (23), as she began addressing the audience.

But she added that her mother only spoke to her about sexuality when she was 21 years old. “She didn’t talk about sex. She spoke about condoms.”

“Sex education is failing,” added non-governmental organisation Soul City’s panellist Lebo Ramafolo. She called on parents to do more to educate their children about sex.

Dr Eddie Mhlanga, the National Health Department’s manager of reproductive health, conceded that there was a problem providing adequate information about sexual activity to teenagers. He said that offering effective sexual education in religiously conservative areas was particularly difficult.

“When we do sex education with young people, we bore them to death.” said panellist and Director for the Centre for the Study of Aids, Mary Crewe. “It comes from a culture of prudery,” she added.

“We must be careful to understand that when we give very good sexual education, it does not lead to licentious behaviour. There is a kneejerk thought that if you teach people about sex, they are all going to do it,” she said, to applause from the audience.

A plethora of opinions were shared during the forum but it was clear that the audience agreed on two things: The criminalisation of sex and even kissing between teenagers under the age of 16 was counter-productive, and that more parents needed to speak to their teenagers about sex.

Information on loveLife’s website says research shows that nearly two thirds of young South Africans (63.3%) say they receive no information whatsoever about sex from their fathers. Half (48.7%) say they receive no (34.6%) or very little (14.1%) information from their mothers.

Too young for sex but old enough to look after yourself
Crewe was scathing about a law that prevents teenagers from having sex. She recounted how, when she worked at a clinic in Hillbrow, clients who returned twice with a sexually transmitted infection had the words” repeat offender” stamped on their files. “We have made sex an offense” and have done so with teenagers, she said.

“In this country we have five million aids orphans,” she said.

“We treat them like adults when we expect them to run their households but treat them like children when we tell them they can’t have sex.”

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