A Pretoria High Court judge on Tuesday had some pressing questions relating to some provisions of the Sexual Offences Act which criminalised consensual sexual activities between children aged between 12 and 16 (be it sex or even kissing), and asked whether these were not perhaps “absurd”.
The Teddy Bear Clinic for Abused Children, supported by the Centre for Child Law, is challenging these provisions and asked Judge Pierre Rabie to declare them unconstitutional. The justice minister and the National Director of Public Prosecutions are opposing the application.
As the law now stands, all consensual sexual acts of children between 12 and 16 (even kissing and not only penetration) are criminal offences. In practice, this means both consensual parties face the possibility of being criminally prosecuted.
In terms of this act, any person – including parents, teachers, school nurses, counsellors, hospital staff and doctors – aware of consensual sexual activities between children have to report the children to the police or face a possible prison term themselves.
The Teddy Bear Clinic’s argument is that the consequences of criminalising children for consensual sexual behaviour are vast. These include that children might not be able to access support and health care services when needed, as they fear prosecution when it comes to light that they have had consensual sex with other children between 12 and 16.
They are also humiliated and exposed to other offenders in the criminal justice system and sex offender programmes, which are often imposed as a sentence option.
The applicants said these children even risked having their names included in the National Register for Sex Offenders.
The case was not about challenging the criminalisation of adult sexual engagement with children below the age of 16, nor the criminalisation of non-consensual sexual crimes committed by children, the applicants said.
The State said the prosecution authority had the discretion to prosecute children under this act and would in most cases not do so. But the applicants said there was no guidance in terms of this act as to what constituted permissible adolescent sexual development.
The State also argued that when children were prosecuted under this act, they would most likely have to undergo a diversion programme (attend sexual offender and other programmes) rather than being convicted and sentenced.
But the applicants said this was still traumatic for the teenagers as they were brought into contact with the criminal justice system and all its consequences.
Judge Rabie on Tuesday voiced his own concerns about the act. He noted that in terms of the act, it would even be an offence if a child under 16 was kissed on the mouth when relatives came together and greeted each other by kissing.
“This shows the absurdity (of some of the provisions of this act), the judge said.
While the government had said that the authorities could not refuse to sell condoms to a child over 12, it was an offence for these children to have sex, he said. He questioned how this fitted in with the provisions of this act, which said children could buy condoms, but they could not use them for sex.
He asked whether the person who sold the condoms had to report the child if it was admitted that the condom was going to be used for sex.
Judge Rabie also wanted to know if a doctor who saw 10 or 15 teenage patients in a hospital in a night, and it emerged they had had sex, was supposed to report them to the police. “This will be an administrative nightmare,” he said.
The trial continues. Pretoria News