Concourt slaps down ‘unconstitutional’ sections of Sexual Offences Act

The Constitutional Court on Thursday struck down two sections of the Sexual Offences and Related Matters Amendment Act that made it illegal for adolescents to engage in consensual sexual acts, including kissing and hugging.

The state earlier argued it had a right to prevent teenagers from having sex by criminalising the act but child's rights groups argued that the law did more harm to children than good, and that there were other ways to encourage healthy sexual behaviours.

In a unanimous judgment, Judge Sisi Khampepe said on Thursday that sections 15 and 16 of the Sexual Offences and Related Matters Amendment Act are unconstitutional as they infringe on the rights of adolescents to dignity and privacy. Non-consensual sexual acts with or between children of any age remains illegal and is prosecutable under the law.

The court found that the sections criminalised developmentally normal behaviour and could have a negative effect on the children the Act was meant to protect.

"I am highly doubtful that the introduction of criminal prohibitions could ever be shown to be a constitutionally sound means of preventing the occurrence of such risks as teenage pregnancy. Certainly the respondents have put forward neither argument nor evidence to convince me otherwise," she wrote.

Responsible sexual lives
Khampepe said there were various methods that the state could use that did not involve criminalisation of consensual sexual conduct between adolescents in order to encourage them to lead healthy and responsible sexual lives.

The court has given Parliament 18 months to amend the laws and placed a moratorium on all investigations, arrests or prosecutions related to the sections in question until that time. Adolescents who have been convicted in terms of the defective sections will have their criminal records expunged.

In May, it was reported that it was girls who would bear the brunt for consensual acts according to the Act. Under the law at the time, if a teenage girl fell pregnant and visited her doctor, her doctor was obliged to report her to the police. And if she was raped, and she could not prove that the sex was not consensual, she could be charged with statutory rape. The stigma of defending herself in court would be severely traumatising, nongovernmental organisations (NGOs) argued.

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 defended. – Additional reporting by Sarah Evans

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Faranaaz Parker
Faranaaz Parker is a reporter for the Mail & Guardian. She writes on everything from pop science to public health, and believes South Africa needs carbon taxes and more raging feminists. When she isn't instagramming pictures of her toddler or obsessively checking her Twitter, she plays third-person shooters on Xbox Live.

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