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Durban - Criminalising sex between consenting adolescents was not the way to deter such underage activity, children’s rights activists in KwaZulu-Natal have said in response to an important court ruling.
The Constitutional Court on Thursday declared sections 15 and 16 of the Criminal Law Act, which criminalised consensual sex between children, unconstitutional.
Justice Sisi Khampepe, and eight concurring Constitutional Court justices, ruled that the Department of Justice and Constitutional Development had 18 months to amend the relevant provisions.
The ruling placed a moratorium on all investigations, arrests, prosecutions and criminal proceedings regarding children in relation to the sections of the act until Parliament had remedied the identified defects.
It further ordered Justice Minister Jeff Radebe to take the necessary steps to ensure that the details of any children convicted of such an offence would not appear in the National Register for Sex Offenders and that such a child would have his or her record expunged.
The criminal prohibitions against non-consensual sexual conduct with children of any age remained in place.
Criminal restrictions against sexual activity between adults and older children on the one hand, and adolescents on the other, also remained.
Children’s rights specialist Linda Naidoo welcomed the ruling, saying children engaged in underage consensual sex should be spoken to instead of criminal action being taken against them.
While agreeing with the judgment, Operation Bobbi Bear, an organisation that fights for the rights of sexually abused children, said it was worrying that those under the age of 16 were having consensual sex. “Every child in South Africa should be taught to (at least) wait until after they turn 16 to have sex,”she said.
The Constitutional Court had made the ruling after an application by the Teddy Bear Clinic for Abused Children, an NGO that provides a range of medical and related services to abused children and co-ordinates programmes to divert young sex offenders from the criminal justice system.
It had asked the court to confirm a ruling by the North Gauteng High Court that the provisions of the act were unconstitutional. The high court ruling had no force unless and until it was confirmed by the Constitutional Court.
The court partially confirmed the order and added the amendments the department had to make.
The sections infringed on the rights of children, aged between 12 and 16, to dignity and privacy, and further violated the “best interest” principle contained in section 28(2) of the Constitution.
Relying on expert evidence, the court concluded that the impugned provisions criminalised developmentally normative conduct for adolescents and adversely affected the very children the act sought to protect.
The court said the effects of the impugned provisions were found not to be rationally related to the State’s purpose of protecting children.
“We must be careful, however, to ensure that, in attempting to guide and protect children, our interventions do not expose them to harsh circumstances which can only have adverse effects on their development,” said Khampepe.
She said the matter was not about whether children should or should not engage in sexual conduct, nor was it about whether Parliament should set a minimum age for consensual sexual conduct.
Khampepe said the court was concerned with a far narrower issue – whether it was constitutionally permissible for children to be subject to criminal sanctions to deter early sexual intimacy and combat the risks associated therewith.