Johannesburg - Teenagers who have sex need education, health and social development intervention and not arrest, which is why consensual sex between under-age adolescents should be decriminalised, Parliament’s justice committee heard on Tuesday.
The committee has to amend the 2007 Criminal Law (Sexual Offences and Related Matters Act) to bring it in line with two Constitutional Court judgments.
These held that Parliament had to amend the law to ensure children aged between 12 and 16 were not criminalised for consensual sex, and that a child’s best interest was taken into account before possibly listing a convicted child sexual offender on the national sex offenders register.
The court cases arose after the 2010 Jules High School sex saga highlighted the law’s pitfalls, which also criminalises consensual kissing, cuddling and petting by teenagers.
After a video of teenagers filming themselves having consensual sex went viral, a 15-year-old girl and two boys, aged 14 and 16, were charged with statutory rape. The charges were dropped after the teenagers underwent a diversion programme.
On the first of four days of public hearings, the Teddy Bear Clinic for Abused Children and Resources Aimed at the Prevention of Child Abuse and Neglect (Rapcan) told MPs that criminalisation led to labelling and secondary trauma.
Girls particularly could be “easy targets” for prosecution under the “misguided laws”, said the Teddy Bear Clinic. “Far from deterring risky sexual behaviour, this also discouraged girls from reporting rapes for fear of being charged.”
Rapcan argued for an additional amendment, or a “close in age” defence for those aged 15 to 17, to ensure protection for consensual teenage sex across similar age groups.
Janine Hicks, commissioner of the Commission on Gender Equality, said the commission supported the amendment bill.
“Decriminalisation of consensual sex acts between adolescents is the right step. We do not believe that is a matter for legislation. It requires education, social development and health interventions. It requires the intervention of parents and schools.”
Non-consensual sex between teenagers and statutory rape or sex between an adult and a child will remain a criminal offence.
Justice committee chairman Mathole Motshekga steered discussions towards what was in the best interest of the child, regardless of what sections of society felt.
Teenagers having sex was a sign of a dysfunctional society, he said. “We may want to send those (experimenting) to prison but we are actually creating a much bigger problem.”
The Justice Alliance of South Africa made a proposal that did not find favour with the committee: parents should be criminalised if they allowed their children to have repeated penetrative sex.
Motshekga said Parliament could not legislate “absurdities” as his fellow ANC MP, Chana Pilane-Majake, nixed invocations of morality.
It would be “difficult to entertain morality because what’s moral to you may not necessarily be moral to me,” she said, adding that culture and religion also played a role.
The committee was expected to brief the House on Wednesday on its request for an extension to the Constitutional Court deadlines of May and June.
Political Bureau