The deadline has come and gone and a month after the Sexual Offences and Related Matters Amendment Bill was supposed to have been finalised, the justice and correctional services committee in Parliament is still deliberating about possible amendments to the tabled document.
With the unexpected number of public submissions and opposition to the amendment, the committee is hoping to have the Bill finalised and approved by Parliament by August 5.
The Bill, which was supposed to be finalised last month according to a Constitutional Court deadline, aims to ensure that sex between children between the ages of 12 and 16 is no longer criminalised.
The committee has approached the Constitutional Court for an extension to August 5 and is still awaiting the outcome of the application after judgment was reserved in the matter last week.
On hearing that the court had made it clear that, if it granted the extension, it would do so reluctantly, the MPs said they understood the court’s frustration.
Age of consent
Committee chairperson Mathole Motshekga said the onus would be on the committee to make sure it met the new deadline by giving enough time to the National Council of Provinces to pass the Bill.
Discussing the draft of the Bill on Wednesday, African Christian Democratic Party MP Steve Swart said it should be emphasised that 16 still remained the age of consent for sex.
Acknowledging the time constraints the committee is faced with in dealing with the controversial Bill, he said he would like to propose an amendment to the Bill in line with the child law on consent.
“I’d like it to be added as an option, where we emphasise, for the purposes for the public, that the age of 16 still remains the age of consent.”
Swart said the main issue, for him, related to the matter of consent.
“I would like us to add a clause there as to what is informed consent, as we are dealing with children between the ages of 12 and 16. I would like us to look at something along the lines of what is included in the Children’s Act, where a child can consent to a medical operation if they understand the implications of that, otherwise it’s not consent.
“Where it already says consent cannot be given when the child is in incapable in law of appreciating the nature of the sexual act, if they are asleep, unconscious, a child below the age of 12, why can’t we also say ‘of not of sufficient maturity or mental capacity to understand the risks of this’.”
Civil society expressed its disagreements with a proposal that was made in March by the state law adviser, which abolishes statutory rape and statutory sexual assault and made consenting sex with someone under the age of 16 equal to rape.
In a submission to the committee, the Centre for Child Law, the Children’s Institute, Molo Songololo, the Teddy Bear Clinic and five other organisations said statutory rape and statutory sexual assault offences have been in existence for many years and “serve a vital purpose of distinguishing between consensual and nonconsensual activities”.