Cape Town - Parliament’s justice committee may have to ask the Constitutional Court to extend the deadline to fix provisions of sexual offences legislation that criminalises consensual teenage sex and includes the names of convicted children on the national sex offenders’ register.
This is because the Justice Department tabled the Criminal Law (Sexual Offences and Related Matters) Amendment Bill only in December.
The draft law deals with two separate Constitutional Court directives to fix provisions declared unconstitutional and invalid in two separate unanimous judgments.
In October 2013 the Constitutional Court allowed the legislature 18 months, or until early April this year, to ensure teenagers aged between 12 and 16 are not criminalised for consensual sex. In early May last year, the same court gave the legislature 15 months, or until June this year, to remedy the provision listing the names of children convicted of sexual offences on the national register.
This means there are just two months for the legislation to be processed, including public hearings, and to be passed by both Houses.
When Justice briefed MPs this week it did not give reasons behind the delay in tabling the amendment bill. MPs have already received more than 400 public comments.
Justice committee chairman Mathole Motshekga said: “If we go ahead within the time frame, people will approach the same court complaining about limited or lack of consultation and the court will strike down the law, saying there was insufficient consultation.”
ACDP MP Steve Swart said he believed approaching the Constitutional Court for an extension was unprecedented, but necessary.
“It became clear that Parliament has not consulted sufficiently on the bill, given the complex issues and the very short period allowed for public submissions.”
Regardless of pending amendments, consensual sex between children remains unlawful and statutory rape, or sex between an adult and minor, also remains unlawful.
A range of child rights lobbyists this week said the amendment bill was crucial in protecting children’s rights. The law currently criminalises kissing, sexual touching and intercourse and, if the children are arrested, exposes them to possible secondary victimisation and public humiliation.
“The Constitutional Court… ruled that the law as it currently stands is a violation of adolescents’ rights and that there are more effective and less invasive measures that the state can take to respond to adolescent activity when it is consensual,” said Professor Ann Skelton of the Centre for Child Law at the University of Pretoria.
Other concerned organisations include the University of the Western Cape Community Law Centre, Childline South Africa, the Teddy Bear Clinic and the Women’s Legal Centre.
Samantha Waterhouse, parliamentary programme head at UWC’s Community Law Centre, said under the current law if a girl took a selfie of, say, her own breast and forwarded it, she could be convicted of two sexual offences, including child porn, and that would automatically lead to inclusion in the sex offenders’ register for life.
Instead, the child rights lobbyists are arguing for a process in which a court has the discretion on whether convicted children’s names should go on to the register.
While the Sexual Offences and Related Matters Act has been on the statute books since 2007, it was the Jules High School 2010 sex video saga when teenagers filmed themselves having sex and the video went viral, which highlighted the law’s potential pitfalls. A girl aged 15 and two boys aged 14 and 16 were subsequently charged with statutory rape under this law.
A Joburg magistrate recommended dropping the charges. That happened in 2011, after the teenagers underwent a diversion programme.