Concern over legal loophole for child pornographers

A number of organisations, gender and faith based, presented their views and objections to the proposed amendments of the Criminal Law (Sexual Offences and Related Matters) Act to the portfolio committee on Justice and Correctional Services on Tuesday.  

With suggestions ranging from calling for parents to be prosecuted for allowing children to have sex and to increasing the age of consent to 18, and a submission that by decriminalising consensual sex between children aged 12 to 16, the law would inadvertently provide child pornographers with a legal loophole, the bill has raised the ire of Christian based organisations while it enjoys the support of child abuse centres. 

The Bill seeks to amend the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007, so as to ensure that children of certain ages are not held criminally liable for engaging in consensual sexual acts with each other; give presiding officers discretion in order to decide in individual cases whether the particulars of children should be included in the National Register for Sex Offenders or not; provide for a procedure in terms of which certain persons may apply for the removal; of their particulars from the National Register for Sex Offenders. 

Justice Alliance of South Africa’s John Smyth, speaking during the public participation session of the finalisation of the bill, suggested the age of consent for penetrative sexual intercourse be raised to 13 years, when children where most likely to be out of primary school. The committee pointed out that they were dealing with a law for adolescents, who are aged between 12 and 16. 

Arguing that decriminalising sex between adolescents might lead to more children engaging in sexual intercourse, Smyth suggested a deterrent be put in place by the committee. “A parent or guardian who knowingly permits a child under 14 years of age to engage in sexual intercourse shall be guilty of an offence.” 

Declaring their support for the amendments, the Teddy Bear Clinic said children convicted of a sexual offence should not automatically go on the register as it was problematic because children are treated in the same way as adults. “It should not be a one size fits all. Children should not automatically be placed on the register unless the child presents a high risk of re-offending or has committed more than one offence.  It has to be compelling circumstances which must be at the discretion of the court what those circumstances are,” Shaheda Omar said. 

The Teddy Bear Clinic as well as the Resources Aimed at the Prevention of Child Abuse and Neglect both said the amendments were not about decreasing the age of consent from 16 to 12. 

Christina Nomdo, of RAPCAN, said decriminalising sexual intercourse between adolescents would not lower the age of consent. “They cannot consent to sex with anyone more than two years older or younger than themselves when they are between the ages of 12 and 16.”

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