Whether or not it is moral for teenagers between the ages of 12 and 16 to have consensual sex is perhaps a matter best left for their parents to decide. But sections of the Sexual Offences Act say teenagers should be criminally prosecuted for their decision to do so, and this is a measure that NGOs feel is a step too far – and one that violates several children's rights.
In addition, it is girls who will bear the brunt for consensual acts. Under the law, if a teenage girl falls pregnant and visits her doctor, her doctor is obliged to report her to the police. And if she is raped, and she cannot prove that the sex was not consensual, she can be charged with statutory rape. The stigma of defending herself in court would be severely traumatising, NGOs argue.
On Thursday, the Constitutional Court must decide whether or not South African teenagers can be prosecuted and registered as sex offenders for consensually engaging in any sexual activity, from French kissing to oral sex or penetrative sex.
The state argues that it has a right to prevent teenagers from having sex by criminalising the act. But the North Gauteng High Court disagreed in a recent judgment.
The contentious sections have been in place since the Act was passed in 2007. However, the sections' application in practise did not come to light until the Jules High School case in 2010, when a teenage girl was gang raped. The rape was filmed and went viral on the internet.
Then, when the alleged perpetrators could not be prosecuted for rape, all three teenagers were charged with statutory rape under the provisions of the Sexual Offences Act in question.
The outrage that followed drew attention to a previously ignored provision of the Act – one that the state will defend on Thursday.
The Teddy Bear Clinic and Resources Aimed at the Prevention of Child Abuse and Neglect – represented by the Centre for Child Law – feel the state places children at significant risk and exposes them to undue trauma by forcing them to explain their sexual habits to a magistrate in court.
Bodily and psychological integrity
The Constitutional Court must this week balance two fundamental rights: firstly, the right to bodily and psychological integrity, including the right to make one's own decisions about reproduction, and to have security and control over one's own body.
It is a right afforded all South Africans, whether or not they are 16 or 60 years old, as stated in Section (12) (2) of the Bill of Rights.
Secondly, this must be balanced with Section 28, which states that the best interests of the child are paramount in all decisions considering children.
Recently, the North Gauteng High Court found that certain provisions of the Sexual Offenses Act, which criminalises consensual teenage sexual activity, were unconstitutional. The applicants now want the Constitutional Court to confirm this.
They argue that certain sections potentially turn thousands of French-kissing teenagers into criminals, whose names might appear on the National Register of Sexual Offenders, along with convicted rapists and child molesters who are prohibited for life from ever working with children.
Shame and stigmatisation
The trauma of having to explain their actions in court, and the consequences of conviction, are a breach of their constitutionally-enshrined rights, they argue. Sections of the Act also require anyone who knows that two teenagers are having consensual sex to report this to the police. This, it is argued, will prevent teenagers from talking about their sexuality and cause them shame and stigmatisation.
In particular, the Women's Legal Centre, one of the organisations who joined the application as friends of the court, argue this provision is especially harmful for teenage girls.
For example, teenage girls who have been raped, and report the crime, run the risk of being criminally charged if the perpetrator is not convicted.
"As a result of the criminalisation, girls face a greater disproportionate risk of negative stereotyping," the centre argues. Furthermore, teenage girls that fall pregnant and need to see a doctor or a nurse, run the risk that their sexual activities will be reported to the police. And they may be deterred from seeking access to health care at all.
The National Prosecuting Authority (NPA) and the minister of justice, in opposing the high court application, argued that the examples used by the Teddy Bear Clinic and others were extreme. They also said that safeguards in the Children's Act, which is the over-arching legislation governing the rights of children, were sufficient to protect children from undue prosecution.
The Child Justice Act is also in place, they argued, and would also protect children, especially with regards to how the police must treat them. If this legislation is considered, the respondents said, the police would rarely be able to justifiably arrest children.
Additionally, only the national director of public prosecutions can choose to prosecute teenagers who have consensual sex. All children who have consensual sex are therefore not at risk, the NPA and minister of justice said.
Sexual behaviour in 'immature' teens
They also said the provisions of the Sexual Offences Act under review do not create offences – they merely give the national director of prosecutions discretion to prosecute them. The best interests of the child would weigh heavily on these persons when deciding whether or not children can be prosecuted, they said.
The state told the high court that the law is intended to save children from themselves by discouraging sexual behaviour in "immature" teenagers.
But the high court found that this was irrational, as the severe punishments envisioned in the law do not fairly fit the crime. As such, the law was "overbroad".
North Gauteng High Court Judge J Rabie, in a written judgment, said: "Very little, if anything, is added to the protection of children by criminalising consensual sexual conduct between them. On the contrary, as has been demonstrated by the evidence, children charged under the impugned provisions will be severely harmed.
"The use of damaging and draconian criminal law offences to attempt to persuade adolescents to behave responsibly is a disproportionate and ineffective method which is not suited to its purpose. There are plainly less restrictive means available for achieving the purposes sought to be pursued."