A month after the Sexual Offences and Related Matters Amendment Bill was to have been finalised, the justice and correctional services committee in Parliament is still deliberating about possible amendments to the tabled document.
The Bill aims to decriminalise sex between children who fall in the 12 to 16 age group.
With the unexpected number of public submissions and opposition to the amendment, the committee has asked the Constitutional Court for an extension to August 5 to have the Bill finalised and approved by Parliament.
The committee 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.
Committee chairperson Mathole Motshekga said the onus would be on the committee to make sure it met the new deadline and it would do so by giving the National Council of Provinces enough time to pass the Bill.
Acknowledging the time constraints the committee is faced with in dealing with the controversial Bill, African Christian Democratic Party MP Steve Swart 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,” he said. Swart added that, for him, the main issue 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 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, made in March by the state law adviser, that abolishes statutory rape and statutory sexual assault and made a person older than 16 having 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”.