056 07.05.2013 School pupil kiss in a public area after school hours at Johannesburg City, Beyersnaude Square, they walk around town wearing school uniform holding hands. Picture: Motshwari Mofokeng

A draft bill removes absurdities from the existing statute which criminalises adolescent sexual contact, says Suhayfa Bhamjee.

Durban - Under-age consensual sex where both parties are adolescents (aged 12 to 15) is an issue of concern, not only for public health bodies, but also for the community in general.

It would be naive to deny that teenagers are curious about matters of a sexual nature or even that they are sexually active. It was with this in mind that the legislature enacted the Sexual Offences and Related Matters Amendment Act, particularly sections 15 and 16, which aimed to deter early sexual intimacy and combat the risks associated therewith.

The Teddy Bear Clinic for Abused Children, and Resources Aimed at the Prevention of Child Abuse and Neglect (Rapcan) v Minister of Justice and Constitutional Development case addressed whether consensual underage sex ought to be a criminal offence and thus reported.

The court held that aspects of sections 15 and 16 of the Act infringed on the constitutional rights of adolescents by proscribing many consensual sexual activities.

The Teddy Bear case is significant as the court recognised that adolescents have a right to engage in “healthy sexual behaviour”. It was accepted that such acts were part and parcel of growing from adolescence to adulthood, and that to criminalise consensual acts between adolescents could do more harm than good.

The aim of the legislation was primarily to prosecute a situation where minors engage in sexual conduct with adults. It was meant to prosecute adults for sexually exploiting minors.

However, the wording adopted by the legislature ended up criminalising consensual sexual acts between children aged 12 to 15 years, where both parties were children.

The decision reached by the court has been interpreted by some to mean that the age for consenting to sex has been lowered to 12 years. This is not true. The age for consent remains at 16, but what it does do is decriminalise the following situations:

Joe is 15 and his girlfriend, Mandy, is 13. They both willingly engage in sexual intercourse. Prior to the judgement, both Joe and Mandy could be charged and prosecuted for “statutory rape” (Section 15); if Joe and Mandy were just kissing, they could both be charged and prosecuted for “statutory sexual assault” (Section 16). Ostensibly they both would be prosecuted for engaging in what is deemed a developmentally normative form of sexual expression.

Further, any person who knew that Joe and Mandy were engaged in these consensual activities was obligated to report it to the authorities (Section 54). The consequence of such report would be an investigation, and prosecution of both children, and if found guilty, their names would be included in the National Register for Sex Offenders.

This created the undesired result that adolescents would not seek medical assistance, including contraception or advice about contraception, for fear of prosecution.

The Teddy Bear case declared these aspects of the Act to be unconstitutional as they violated a child’s rights to dignity, privacy, bodily and psychological integrity, and would ultimately violate the best interest principle. As a result, the court ordered the legislature to make suitable amendments to the Act.

The Draft Criminal Law (Sexual Offences and Related Matters) Amendment Bill 18 of 2014 takes consideration of the Teddy Bear case, as well as public comment, and makes the following aspects clear:

The primary objective of sections 15 and 16, namely to protect adolescents from adult sexual predators, remains unaffected by the Constitutional Court judgment and does not lower the age of consent to 12 years. The draft bill, in keeping with other pieces of legislation, defines “child” as any person under the age of 18. Sections 15 and 16, however, do categorise “child” by demarcating the ages of 12 to 15 years (adolescents), the purpose being to create special protection and safeguards for children in this age group.

The draft bill makes no changes to the reporting obligations that exist for health care professionals etc where they become aware of instances of sexual exploitation or non-consensual sex between adolescents. Again, this is aimed at protecting adolescents from sexual predatory adults, and also from exploitation and abuse from peers. The issues of criminalisation and prosecution are curtailed by allowing delegated discretion regarding prosecution, as well as discretion regarding the entry of names into the register of sex offenders. This automatic inclusion of the particulars of persons (as per the Sexual Offences and Related Matters Amendment Act), who were children at the time of the commission of sexual offences, in the National Register for Sex Offenders is contrary to the “best interest of the child” principle and therefore not justified in an open and democratic society.

What amendments have been made and what do they mean?

The legislature has effected amendments to sections 15 and 16 in line with the judgment of the Teddy Bear case. In addition, they have included within the sections a defence (which was somewhat hidden in the Act) which considers consensual sexual activity between adolescents and children who fall into the category of ages 16 to 17.

It is not an offence for adolescents to engage in consensual sexual activity with other children who fall within the same age category. However, where an older child (16 to 17) engages in consensual sexual activity with another child (12 to 15) it will be an offence if the age gap between them is greater than two years.

* Joe is 16 and Mandy is 15 – no offence has occurred, because there is only a one-year age gap between them. But Joe is 16 and Mandy is 13 – then there will be an offence. In terms of the proposed amendment, only the older child, Joe, can be charged and prosecuted. There will, however, be legal implications for Mandy because she will still be required to give evidence against Joe.

The Act codified the common-law position regarding situations where consent, although given, will, in terms of the law, not be valid. As a result of a mistake as to the nature of the act (“error in negotio”) to which a person is ostensibly able to consent (because he/she is an adult), that person’s consent is rendered invalid.

For example, in the case of R v Flattery where a surgeon induced a patient to believe that he was performing a medical procedure to cure her epilepsy, but in fact engaged in sexual intercourse with her, he was found guilty of rape because her “consent” was invalid. The Act caters for this situation by considering situations where consent is obtained through fraudulent means.

But how it works with adults is that the presumption is that an adult understands unless proven otherwise, or the accused party has reason to believe that the victim could not have understood the nature of the act – such as being asleep, drugged or intoxicated.

This position remains. Thus, if a child is misinformed of the consequences of participation in a sexual act (e g transmission of an STD, pregnancy etc) the child’s consent to the sexual act will still be valid, and no rape, sexual assault, or sexual violation would have occurred.

Children get their “education” about sex largely from their peers. This information is, more often than not, misinformation:

* “You can’t get pregnant from only doing it one time.”

* “You can’t get pregnant if the girl has her menses.”

* “You can’t get an STD if you shower straight after.”

This lack of knowledge cannot be laid at the door of the adolescent alone. As the adage goes, “it takes a village to raise a child” and there are many myths and misconceptions among adults which perpetuate the cycle:

* “Kids these days are already way too active sexually and don’t need information.”

* “Kids will pick up what they need to know on their own.”

* “If you talk with or educate young people about sexual health, they will experiment with sex.”

* “If schools teach sexual health education, this will replace the role of parents.”

* “If teachers or parents are not comfortable talking about sexual health, then it is better not to discuss it.”

* “Making condoms available will increase sexual activity.”

In summary, the bill states that the two-year age defence applies only where “Joe” (16 to 17) engages in a “consensual” sexual act with “Mandy” (12 to 15) – which actually means that a 16-year-old can have sex with a 14-year-old or a 15-year- old, and a 17-year-old can have sex with a 15-year-old.

For the 12-to-15-year-old category, it’s pretty much a “free-for-all” where both “Joe” and “Mandy” fall within that age group.

Where to from here? The aims of the draft bill are to prevent unhealthy and premature sexual experimentation between peers; to prevent adolescents from being sexually exploited by their peers; and to prevent adults from engaging in acts of a sexual nature with any child under the age of 16.

Perhaps the criminal law is not the only way for this goal to be achieved. Community engagement and education are vital in creating a healthy respect for and attitude to sex. More needs to be done on a communal level, at schools, at churches, at mosques, at temples and within the home. It takes a village …

* Suhayfa Bhamjee is a senior lecturer at the UKZN School of Law on the Pietermaritzburg campus.

** The views expressed here are not necessarily those of Independent Media.

The Mercury