Adolescence is a biological fact; not one of us escapes it on the way to adulthood. And since it’s largely defined as the time when our sexuality awakens and we come to terms with it, shouldn’t we be making more of an effort to help children understand their sexuality – especially now that we’ve woken up and decriminalised adolescent sexual activity?
A recent debate on AM Live’s Forum at 8 was between parents about whether adolescents between the ages of 12 and 16 should be “allowed” to have consensual sex with each other. Until last week under our law they were not. Not even kissing or touching, never mind intercourse. Parental furies had been awoken by a High Court judge who had decriminalised consensual sexual activity between children between the ages of 12 and 16, and found aspects of the Criminal Law (Sexual Offences and Related Matters) Amendment Act to be unconstitutional because they violated the rights of children.
In the subsequent furore, assorted mother grundies, moral tyrants, punitive parents, pastors and priests, plus a variety of self-appointed guardians of children’s sexuality, joined the debate to lambaste the judgment in the interests of protecting morals and preventing what they described as “the problem” of sex. Objectivity in the debate was not aided by irresponsible sensationalism by the media, some of whom screamed headlines such as “Kids can Bonk” and “Green Light for Child Sex”.
Surprisingly, even the Department of Justice and Constitutional Development seemed to play to this prejudice, opining piously about the possibility of an appeal. It is unlikely that many of the callers had read the judgment. They should. It does not encourage or “allow” sex, it merely decriminalises it.
It is even more unlikely that they were aware of the intricate expert evidence the court had considered in reaching its decision, or the arguments brought by responsible children’s rights organisations as to why the Act was causing vulnerability and harm.
But before we go there, let’s start at the beginning.
Puberty is a part of human biology. Nobody escapes it. It is defined in the dictionary as the period of a person’s sexual awakening, the period in which their body develops and acquires the necessary tools to allow reproduction. But puberty is not just a biological process that ripens the body. It is an emotional and mental process, too. It is the time when children begin to feel sexual desires and, naturally, how to act on them. How many honest readers, I wonder, do not still recall the intensity of their first adolescent fumblings, encounters with sex and first love?
Puberty is also a legal marker recognised in almost every jurisdiction in the world. In our law, puberty dates from the age of 12 for girls and 14 for boys. Theoretically it is the point at which a child may get married, albeit at this early age only with the permission of the Minister of Justice and Constitutional Development. At this age, according to the Children’s Act, boys and girls over 12 may request HIV testing, without parental knowledge if they choose. They may also access condoms. However, the effect of the Sexual Offences Act was to try to prohibit puberty and threaten to punish it. A law prohibiting natural and normal human biology. Could anything be more absurd? It’s as impossible and unworkable as the apartheid-era Immorality Act.
However, in addition to attempting the impossible, the Act had a number of serious negative consequences for children. Notably, it required that health-care workers report child “offenders” to the police, placing them in an invidious position of not being able to assist HIV testing and counselling of teenagers, or provide advice on sex and sexuality, without reporting them to the police – or breaking the law if they did not.
Further, if teenagers know that they may be reported to the police if they seek HIV testing, counselling or condoms, then it is highly unlikely that they would access essential health services – increasing their risk of pregnancy or HIV.
The mother grundies’ argument is that if sex is allowed among adolescents we will have an orgy, a free-for-all, and the state will fail in its duty of moral protection.
They are right in one thing: there is a crisis around sex among young South Africans.
In 2009 there were 45 276 pregnancies recorded in our schools, including 109 of girls in Grade 3 (i.e. as young as eight years old) and 11 116 in Grade 10 (about 16 years old).
The incidence of HIV among girls under 18 is six times as high as among boys of the same age. And, as was reported by an official of Gauteng Health Department last year, there is extensive evidence of an increase in forms of pornography and sexual abuse among teenagers.
But the mother grundies are wrong in how they understand this; because silence and suppression is precisely what has created the crisis. The existing law clearly has not stopped sex. It’s just encouraged denial – and by doing so created a space for adolescent confusion and a variety of sexual abusers.
Teenage pregnancy, clearly an expression of teenage sexuality, does not occur because there is too much information and encouragement of sex. It occurs because young people are not being informed and advised about sex and love in a sensible and non-judgemental way.
For example, in a discussion that Section27 held with Barbara Creecy, the MEC for Basic Education in Gauteng, she pointed out that while the government made condoms widely available to assist efforts against HIV – “we don’t put similar effort into assisting children to understand the emotions and feelings that drive sexuality. We don’t help adolescents to distinguish abuse from love; consent from exploitation; rape from sex”.
It is a good idea to encourage young people to delay the first time they have sexual intercourse or to take steps to avoid unwanted pregnancy, but we cannot do this by silence, moral battery or harking back to a world that never existed.
The way to address the crisis our country faces around sex, teenage pregnancy, and sexually transmitted diseases including HIV, is to find responsible ways talk about sex, not to try to suppress it.
The mother grundies must move aside. Talking openly and responsibly about sex in our homes and schools is not to encourage it, but to allow adolescents the information and space they need to make their own decisions, understand what is right and wrong, and prepare to be self-respecting and respectful adults.
l Heywood is the executive director of Section27 and an executive member of the Treatment Action Campaign. This article also appears in the Daily Maverick.