On Tuesday Judge Pierre Rabie found that sections of the Sexual Offences Act, which made consensual sex between teenagers a crime, were unconstitutional.
The laws, which were widely panned by child rights activists since they were first mooted, even made it illegal for teenagers to engage in kissing and cuddling if there was more than a two-year age gap between them.
About a quarter of all South African teens are sexually active by the time they are 15. Many more have engaged in kissing by the time they are 16. But according to the law, any adult who was aware of such acts was compelled to report the teens to the police.
It didn’t take long for the national outrage to explode over the radio waves and the internet, with many claiming the move would lead to young people having sex at an earlier age.
“This country already has an epidemic of Aids and teenager mothers at schools, it is irresponsible to legalise it more,” was a common refrain on Twitter, as were comments about the moral decay of the nation.
Reactions, like that from @africanbison, who said parents should “teach your child right vs wrong not legal vs illegal,” were drowned out in the Twitterverse.
Positive outcome for child rights
But child rights advocates were pleased with the outcome, and surprised by the public reaction.
Vivienne Mentor-Lalu, advocacy coordinator for Resources Aimed at the Prevention of Child Abuse and Neglect, said these arguments don’t hold up under scrutiny.
“This law didn’t help at all in the first place. It’s not as if this law actually provided solutions to the concerns around adolescent sexuality because it pushed [sexually active] adolescents underground. It hamstrung adults from being able to help children – as you would be implicated in a criminal offence if you did – and it made it seem that all adolescent sexuality was illegal and needed to be responded to punitively,” she said.
“If we want children to make sound decisions around sexuality, how can criminalising sexuality be the way? That, for us, is such an obvious point. We don’t see why people aren’t getting it.”
Activists, NGOs and legal and health practitioners raised the alarm over the act as far back as 2011 when it was pointed out that some provisions in the new Sexual Offences Act contradicted provisions of the Children's Act. While one made it legal for teens to access contraceptives, another criminalised sex for those under 16.
Dealing with sexually active children
The Act also stands in direct contradiction to Health Minister Aaron Motsoaledi’s recently-launched Integrated School Health Programme, which ensures that scholars can have access to a host of health services including access to contraception, counselling and testing for STIs.
If the Act, as it stood, were to be enforced it would have meant that nurses, would have to report sexually active teenagers to the police.
Carina du Toit, an advocate at the Centre for Child Law, said that the original aim of the Sexual Offences Act was to protect children from predatory and abusive adults. Yet somehow, during the drafting of the law, one of the focuses came to be on teenagers having sex with each other.
But the question for the law, Du Toit said, was not whether it was okay for children to have sex, but how to deal with children who are having sex anyway.
“Is the right route to have criminalisation, or to have parents deal with children themselves?
“Imagine your 15-year-old daughter comes to you and says: ‘I was at a party last night, I had sex and I really need to see a doctor.’ Do you as a parent want your first port of call to have to go to the police? Or do you want to deal with it as a parent?”
According to the Act as it stood, the parent would have to report the child to the police.
Last year there were 11 cases in which charges were pressed against teenagers who had engaged in consensual sex. Teens who are charged under these laws are not prosecuted but rather ‘diverted’ into other programmes – this doesn’t mean that they are left unscathed, as they can still be arrested, questioned by the police and detained in police cells.
“The whole process until you get diverted is extremely traumatic for the children,” said Du Toit.
“You get arrested, taken to the police station, and have your fingerprints taken. You have to make a statement about your sex life in the presence of a police officer and your parents. Then you get taken to court where you have to do it again before a lawyer and a magistrate,” she said.
This is precisely the sort of overstepping of boundaries that Judge Rabie sought to prevent when he said that to subject “intimate personal relationships to the coercive force of the criminal law” was to “insert state control into the most intimate area of adolescents’ lives”.
Rabie said that despite reforms to the justice system to make it more child friendly, “exposure to the criminal justice system is still a dramatic and harrowing experience” and that there was no doubt it would have negative consequences.
Although Rabie’s ruling means that teens can no longer be prosecuted for consensual acts, non-consensual acts remain illegal as do cases in which adults have had sex with minors.
Childline South Africa’s national coordinator Joan van Niekerk said the ruling would also give adults, such as doctors, nurses and counsellors, who worked with children alternatives for dealing with child sexuality.
“It means that young people who are involved in sexual relationships [and are] under the age of consent can approach facilities for help and advice,” Van Niekerk said.
“Under the old provision, if a 15-year-old came to me and said: ‘I’m sexually active with my boyfriend because he said if I don’t have sex with him, it means I don’t love him”, I then by law was required to report that child to the department, or else I would be criminalised,” she said.
The change was part of an effort to get young people to approach counselling and healthcare services if they needed them.
Van Niekerk said that what child rights advocates would like to see is young people delaying their sexual debut for as long as possible.
What the change to the law meant was that teenagers could now approach counsellors who would be able to advise them on how to deal with the sexual pressures that so many children experience in their peer group.
“I hope this will free young people up enough to approach services that will help them be responsible in terms of their sexual behaviour,” she said.
Changes to the law
Van Niekerk dismissed the idea that changes to the law would encourage children to have sex at a younger age.
“I don’t think children are influenced by the law in any way when making choices about becoming sexually active but they are influenced by access to counselling and services,” she said.
“I don’t think [this change] is going to promote or inhibit sexual behaviour. What I hope it will do is promote children seeking out resources that can help them make better choices.”
Paula Proudlock, child rights manager at the Children’s Institute, said police resources and the might of law should be reserved for dealing with sexual offences against children, and not wasted on children who are exploring their sexuality together, consensually.
“You don’t want to criminalise normal human development and behaviour. Sexual experimentation between teenagers is normal human development. You want to rather guide children in that process and not scare them away from support by criminalising them,” she said.
Proudlock said that the heavy-handed approach of the Sexual Offence Act was particularly problematic for doctors and nurses.
“They need teenagers to be able to trust them and to come to them for contraceptives and treatment for STIs or HIV,” she said. “If doctors and nurses are obliged to report them to the police, there’s no relationship of trust that can be built.”
Proudlock also said that while some parents might feel as though they are unable to stop their children from engaging in early sex, the solution was not to turn to the police and the courts, but to examine their relationship with their children, and improve their communication.
“You do want to prevent children from engaging in sex too early but that should be a social response – it’s [the responsibility of] parents, teachers and health promotion. It has to start early. It’s not going to start by locking children up in police cells,” she said.
“The emphasis should be on strengthening and supporting parent's relationship with their children,” she said.