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

Advertisting

Salie-Hlophe accuses Goliath of lying and racism

In response to Goliath’s gross misconduct complaint, Salie-Hlophe says Goliath has ‘an unhealthy obsession with my marriage’

Miners speak out against Sibanye

Not a year into buying Lonmin, Sibanye is accused of mistreating the mineworkers who were injured eight years ago during the Marikana massacre. But the platinum giant says it is a miscommunication. Athandiwe Saba and Paul Botes visit Marikana to find out the truth

‘There were no marks on his neck’, Neil Aggett inquest...

The trade unionist’s partner at the time he was detained at John Vorster Square says she now believes his death was not a suicide
Advertising

Press Releases

Boosting safety for cargo and drivers

The use of a telematics system for fleet vehicles has proved to be an important tool in helping to drive down costs and improve efficiency, says MiX Telematics Africa.

Silencing the guns and firearms amnesty

Silencing the guns and firearms amnesty

Gender-based violence is an affront to our humanity

Gender-based violence is an affront to our humanity

UK-Africa investment summit 2020: Think Africa Invest SA

UK-Africa investment summit 2020: Think Africa Invest SA

MTN unveils TikTok bundles

Customised MTN TikTok data bundles are available to all prepaid customers on *136*2#.

Marketers need to reinvent themselves

Marketing is an exciting discipline, offering the perfect fit for individuals who are equally interested in business, human dynamics and strategic thinking. But the...

Upskill yourself to land your dream job in 2020

If you received admission to an IIE Higher Certificate qualification, once you have graduated, you can articulate to an IIE Diploma and then IIE Bachelor's degree at IIE Rosebank College.

South Africans unsure of what to expect in 2020

Almost half (49%) of South Africans, 15 years and older, agree or strongly agree that they view 2020 with optimism.