“What should we do with adolescents who engage in consensual sex?” is the vexing question that the parliamentary portfolio committee on justice and correctional services is grappling with, and time is running out for the members to find an answer.
The Constitutional Court gave Parliament until this month (April) to change the Criminal Law (Sexual Offences and Related Matters) Amendment Act after it found that sections criminalising consensual sex between adolescents violated children’s rights to dignity, privacy and physical and psychological integrity, among other things, and that it stops children from seeking guidance and support from adults.
Parliament is now asking for an extension until August this year.
The Act made it a criminal offence for anyone to engage in any kind of sexual activity with a child under 16 regardless of consent and even if both participants are children.
In November 2014, the department of justice and correctional services tabled the Criminal Law (Sexual Offences and Related Matters) Amendment Act Amendment Bill. According to the Bill it will no longer be a crime for children aged 12 to 15 to engage in sexual activity with each other, and 16- to 17-year-olds will not be criminalised if they engage in consensual sexual activity with an adolescent up to two years younger than them. But sexual activities without consent — including children under 12 years who are considered incapable of consent — remain the serious crimes of rape or sexual assault even when committed by adolescents. Furthermore, any person over 18 is committing an offence of statutory rape or statutory sexual assault when they engage in consensual sexual activity with a child under 16 years.
The portfolio committee on justice and correctional services called for comments on the Bill; it received an unprecedented response, with more than 900 submissions. Stakeholders included parents, human rights activists, the faith-based sector, medical experts, traditional leaders, government departments and children.
Concerns were raised about the age of consent being lowered. Parents and religious leaders felt the Bill sent a wrong message to children — that they are free to have sex, which undermines parental authority.
In response to the public hearings the State Law Advisers tabled a new proposal ostensibly to clarify confusion about the age of consent, (which remains at 16 as stipulated in the Act). The new proposals will lead to a radical rewriting of the Bill.
The changes have the following effects: the age of consent is explicitly stated as 16 and it is illegal for anyone under 16 to consent to sexual acts even among peers, but there is a defence that can be used if the children under 16 having consensual sex are only two years apart. The crimes of statutory rape and statutory sexual assault would be removed, so penetrative sex will constitute rape and nonpenetrative acts will be sexual assault even if an adolescent willingly engages in the act. These proposals are of grave concern because they undermine the tabled Bill and arguably the intent of the Constitutional Court.
In terms of the Act, a person convicted of raping a child under the age of 16 must, as a general rule, be sentenced to life. The new proposals will lead to the absurd situation where consensual sex could be penalised more severely than coercive sex.
For example, a person who is 18 and two months old who has consensual sex with an adolescent who is 15 years and one month old would be charged with rape and not the lesser “statutory” offences, as is currently the case. He or she will therefore be sentenced more severely (a life sentence) than a person who has been convicted three times for rape, which carries a minimum 20-year sentence.
These changes are clearly outside the mandate of the Constitutional Court and, more importantly, they once again undermine the children’s rights ethos espoused by the court.
If the committee wants to clarify the age of consent, there are simple ways to do it without radically changing the Act.
Given the limited time available to meet the revised deadline, assuming the court grants the extension, we believe that the committee should adopt the tabled clauses in relation to decriminalisation as these were widely supported.