Cape Town - Kissing, hugging and cuddling - innocent acts between children or sexual acts which could lead to their being arrested?
The Constitutional Court is to hear a case on Thursday to confirm a court ruling that the law should not make it a criminal offence for children aged 12 to 15 to have consensual sex.
In January, Judge Pierre Rabie ruled in the Pretoria High Court, that certain sections of the Sexual Offences and Related Matters Amendment Act were invalid. His ruling had to go to the Constitutional Court to be confirmed and has been set down for Thursday.
It has been hailed as a victory for children’s rights as children would not be criminalised for normal activity.
The sections in question make it an offence for children 12 to 15 to engage in consensual sexual acts, including kissing and light petting.
Any person - parents, teachers or nurses - aware of these activities between children has to report them to the police or face a prison term themselves. Both children can be be charged with statutory rape, despite having consented, and they risk having their names listed in the National Register for Sex Offenders.
The law was drafted with the intention of protecting women, children and people living with disabilities who were raped or sexually abused.
In his judgment, Judge Rabie said that the range of sexual activities was defined so broadly, that it included conduct that “virtually every normal adolescent participates in at some stage or another”.
“It is for this reason that the applicants submitted that the term ‘sexual violation’, is a misnomer, as the definition includes virtually every conceivable form of physical contact, even where it is only tangentially of a sexual nature.”
He said that if this behaviour was conducted in ways that were “consensual and respectful” it contributed to a positive and healthy development.
“The use of damaging and draconian criminal law… to attempt to persuade adolescents to behave responsibly is a disproportionate and ineffective method which is not suited to its purpose.
“There are plainly less restrictive means available for achieving the purposes sought to be pursued.”
The Teddy Bear Clinic and Resources Aimed at the Prevention of Child Abuse and Neglect (Rapcan), represented by the University of Pretoria’s Centre for Child Law, launched a constitutional challenge against the offending sections of the act. A number of organisations working with children had planned to challenge the act’s constitutionality since at least 2010.
“Rapcan wants the decision of the High Court to be confirmed because it recognises the importance of children’s right to dignity, privacy and their right to participate in decisions about sexuality, especially when engaging with their own peer group.
”Professionals and parents should be able to provide children with the necessary support and guidance about sexuality to make informed decisions without fear of incriminating the child or themselves,” said Vivienne Lalu of Rapcan.
A press conference is to be held today about the court hearing.