Teens, feel free to get your freak on
"It's official: Teens can kiss and have sex," was one of the headlines seen after the Constitutional Court ruled that sections of the Sexual Offences and Related Matters Amendment Act were unconstitutional. "Top court gives go-ahead to kids as young as 12!" read another.
The sections in question had, since 2007, made it illegal for adolescents – children aged 12 to 16 – to engage in a range of consensual sexual behaviours, from hugging and kissing to intercourse, under pain of prosecution under the criminal justice system.
Child rights advocates who'd long opposed the provisions breathed a sigh of relief after the offending sections were declared unconstitutional and lawmakers sent back to the drawing board. But much of the discussion around the news embraced the moralistic tone taken on by some sections of the media.
The Reverend Kenneth Meshoe, leader of the African Christian Democratic Party, called the ruling "an assault on morality" and complained that "the children of today don't care, they know there will be no consequences for their actions".
The justice department's spokesperson, Mthunzi Mhaga, said he worried that the children might interpret the ruling as a "free for all".
All of which makes absolutely zero sense.
I find it hard to imagine that after Justice Sisi Khampepe delivered her sensible and balanced judgment on this matter, hordes of horny 12-year-olds who had been dying to have sex but were holding themselves back because of their intimate knowledge of the provisos of the Act were suddenly ripping off their clothes with joyful abandon and getting naked with their pubescent classmates.
Adolescents in our country are having sex.
They were doing so before 2007 when the Act, and the bizarre sections that decreed that those hugging and kissing in corners could be dragged before a judge for their immorality, first came into play. They have been kissing and fondling and yes, having sex, since then and they will continue to do so after this law is rewritten in 18 months.
We can't escape the fact that the majority of South African adolescents are engaging in a variety of sexual behaviours as they begin to explore their sexuality. But experts tell us that these adolescent sexual experiences, when in the context of some form of intimate relationship, are not only developmentally significant but also developmentally normative i.e. perfectly normal and necessary.
When arguing its case in court, the state did not even attempt to counter evidence to this effect, and it failed to put up any convincing arguments as to why the laws were necessary.
Instead, state lawyers swayed between claiming that the laws were intended to prevent risks associated with sexual conduct, such as teen pregnancy and exposure to sexually transmitted diseases, and claiming that they were intended to prohibit any act that may give children sexual gratification, without giving a shred of evidence to show that simply writing something into law could have this effect.
So it was unsurprising that the judges of the Constitutional Court ask that the laws be rewritten in a way that considers the dignity, privacy and rights of young people.
And yet we continue to read and hear enraged adults complaining about how a rewrite of these laws will somehow encourage young people to have more sex at younger ages.
We are fooling ourselves if we think we can alter behaviour simply by encoding something in law. Jaywalking is illegal in South Africa and so is public drinking but both are rife around the country.
Similarly, just because something won't land you in jail doesn't mean that the state is actively encouraging you to do it. Despite what many people are saying on this issue, amending the Sexual Offences Act does not mean the state is now condoning teen sex.
Smoking is perfectly legal in South Africa even though it is recognised as a dangerous activity that contributes to about 8% of all adult deaths in the country. No one would argue that because smoking is not illegal, the state want's people to smoke.
There are very real reasons why teen sex is problematic. Early sexual debut is associated with an increased risk of contracting sexually transmitted diseases and of teen pregnancy. This in turn can hinder a girl's personal development and limit her educational and life opportunities. Girls born to teen mothers are also more susceptible to poverty and instability.
But this does not automatically translate into a need to legislate the private sexual lives of children and teens, who hold the same human and personal rights as adults.
And private it is – unlike robbing a bank or driving a car under the influence of alcohol, when two people have consensual sex the only people they could potentially cause harm to is each other, so frankly, it's nobody else's business. The best you can hope for is that they've done their homework, received some counselling ahead of time and are being as safe as possible – but that applies whether the parties involved are 15 or 50.
Dragging some kids down to the police station to explain their sexual history to an officer and then consigning them to either a "diversion programme" or to jail time for their sexual experimentation is nothing less than a modern-day scarlet letter.
We don't have to take any shots in the dark to come up with solutions that would actually work to prevent early sex. Every country in the world has had to look at ways to help young people manage their sexual health and relationships, and it is well documented that those countries that have more open, positive attitudes towards sexuality have better sexual health outcomes.
The country most often held up as a model in this regard is the Netherlands, which has one of the lowest teen pregnancy rates in the world. This is put down to its comprehensive sex education programmes, which start around age 12 and a culture in which parents speak openly with their children about sexual and reproductive health.
South Africa has neither of these. Instead we have a culture where young people are shamed by parents and other adults for their interest in sex, harassed out of state clinics that should by law be offering counselling and reproductive healthcare, and until last week threatened with a criminal record if they so much as engage in kissing and cuddling.
Studies have also shown that some of the biggest factors influencing the age that young South Africans first have sex includes school attendance, alcohol use, maternal or paternal death, whether the child lived in the same household as their mother, family income and poverty – all factors that have more to do with the family than the child.
We cannot vilify young people for the flaws of adult society, and we cannot expect the police and the courts to punish young people for the choices they've made while under the poor guardianship of families and communities.