New child sex law aims to protect

By Tebogo Monama Time of article published Jul 22, 2015

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The 2007 Sexual Offences Act, which was meant to protect young children, had unexpected consequences for teenage girls. One was that it made it harder for them to be believed when they tried to open rape cases. The act has recently been amended, and decriminalised consensual sex for children aged between 12 and 15 . The age of consent was set at 16. Tebogo Monama looks at the effects of the act and how adults have tried to regulate children’s sexuality.

Johannesburg - In June 2015, Parliament decriminalised consensual sexual activity between children aged 12 to 15 years much to the relief of activists who have been fighting the constitutionality of the 2007 Sexual Offences Act for a long time.

Activists believed that instead of protecting children, the act placed them – especially girls – in danger.

The latest changes to the act, which was effected last month, sets the consent age for sex among children at 16. Although the age of consent is set at 16, the act extends in decriminalising consensual sex between 12- to 15-year-olds.

During a seminar on the changes to the act, Wits University researcher Lisa Vetten said some of the problems with the 2007 Sexual Offences Act became apparent in 2010 after a video surfaced of the alleged gang rape of a 15-year-old Jules High School, Joburg, pupil.

Vetten said that after the video emerged, the girl laid rape charges against the two boys allegedly involved.

“Not only did that video go viral, but after viewing the footage, the National Prosecuting Authority believed the sex was consensual. In the past, you would only have charged the boy, but in terms of the new provisions of the 2007 Sexual Offences Act, because it was consensual, you could then charge both.

“The girl went from having laid charges of rape to then becoming an accused herself. It set off alarm bells for people because it said that in the future, teenage girls who lay charges of rape and where the circumstances were not clear would themselves be charged. This was not a risk adult women or any girl over the age of 16 faced,” Vetten said.

The Jules High School pupils were sent to a diversion programme but the girl was never able to have a normal life again.

“She was unable to go back to school, and two years later, in 2013, she still had not been able to go to school. She went to two other schools and eventually had to change because people found out who she was.

“In 2014, she committed suicide. This was one of the first examples of the damaging effects of the law,” Vetten said.

Another worrying case, Vetten said, happened in a school in Giyani, Limpopo, where 27 girls had fallen pregnant.

“They were reported to the police. Five boys and two girls were charged in terms of the Sexual Offences Act. The charges were eventually withdrawn, but it started showing us how the law, which was there to protect and deal with sexual violence, was used in an incredibly punitive way to police and regulate children’s sexual activity,” Vetten said.

She said researchers working in the Western Cape found that police officers started visiting clinics asking to look at the ante-natal registers to see if minors were pregnant. She said this led organisations to question the constitutionality of the act and what she described as the “demonisation of teenage girls.”

“Boys were certainly being charged but it was particularly extreme on teenage girls. The consequences were most severe for girls.

“The other difficulty is that teenage girls are not believed when they lay rape claims. We did research on the conviction rate of rape cases in Gauteng in 2003.

“We divided groups into children of eight years and younger; children 12 to 18; and adults.

“The group whose cases were the least to end in conviction were adolescent girls. What was more likely to happen there was that the case was transformed into statutory rape. There is a disbelief in their stories,” Vetten said.

She said the interesting question was why girls were becoming scapegoats. “What is it about the current climate that makes them the target of our fears and anxiety?”

Nolwazi Mkwanazi, an anthropologist at Wits University, said that instead of policing young people’s sexuality, teaching them about reproductive health and an access to contraception would be better interventions.

She said legislation like the Choice of Termination of Pregnancy Act, which allows women to have free abortions, and the SA Schools Act, which has made it illegal to expel a young mother from school, have tried to deal with the challenges, but there was still a long way to go.

“There are still a lot of challenges that stop young black women from attaining these rights. Schools remain hostile to pregnant learners and learner mothers. We are told that just over half of the terminations by young people between 13 and 19 are performed illegally,” Mkwanazi pointed out.

She said the rate of teenage pregnancy had decreased over the past 20 years but the figure was still high.

“In a study on teenage pregnancy, it was found that three-quarters of respondents between 18 and 24 became pregnant because of a lack of reproductive knowledge.

“They also found that just over half did not understand the risk of having sex,” Mkwanazi explained.

She said sexual education was part of the school curriculum in life orientation classes, but little research had been done on how this was done.

“Teachers and learners are unwilling to speak about sex. We know that teachers are often intent on discouraging learners from sexual activity, and so in their teaching they tend to advocate abstinence.

“We find similar ideas in young people’s encounters with nurses,” Mkwanazi said.

Zane Dangor, special adviser to Social Development Minister Bathabile Dlamini, said they were trying to bridge the gap through the National Adolescent Sexual and Reproductive Health and Rights Framework Strategy approved by the cabinet in February.

Dangor said an important issue that society didn’t talk about when discussing teenage sex was that some of them have sex because it’s pleasurable.

“We talk about the right to exercise the right to choice and, more importantly, the right to seek pleasure. That is something we rarely talk about, especially in adolescence. It is an issue that causes significant angst within society.

“When we talk about pleasure and how that plays itself out practically, we confront the issue of why adolescents have sex. Teenagers have sex because they like it, and that is something we need to engage with. Those who have sex for pleasure were more likely to have protected use, were more likely to use condoms and seek contraception,” Dangor pointed out.

‘Kids are sexual beings with rights’

It’s about time that society starts viewing children as sexual agents and lets go of the notion that they are innocent and in need of protection, says Deevia Bhana, a researcher at the University of KwaZulu-Natal who says children are sexual beings with rights.

For 18 years, Bhana has been conducting research on children from different races between the ages of 6 and 18, on sexuality.

“I reject and refute the claim that children are innocent. Indeed, our obsession with the idea that children are innocent is denying ourselves the opportunity to really understand what is happening in the lives of South African children.

“It is about time to opt out of this ridiculous notion because it blurs the kind of issues that are vexing and troubling in terms of children and sexuality,” Bhana said.

She said more research needed to be done in the area of childhood sexuality and this should not be stopped by ethics committees.

“One of the major messages in my work is that we should not be stifled by the problematic relationship between children and sexuality. We need to actually escalate research with children around issues that are regarded as problematic, sensitive and controversial.

“In relation to ethics committees, we should not collude with ethics research committees. We should indeed do the research, as those who have vested interests that children’s lives are put on agendas as research,” Bhana said.

She said children as young as 6 and 7 years old should, instead of being seen as victims, be viewed as sexual beings.

“Seeing children who are 6 or 7 as sexual beings is particularly troubling because of the idea that children are supposedly innocent, in need of protection.

“I do not want to discount the fact that in this country in relation to the statistics… children remain vulnerable. The sole focus on protection denies the other side of sexuality. It denies the side of sexuality in which children are indeed sexual agents and are part of this lifelong project of being sexual beings,” Bhana said.

She said viewing children as sexually innocent prevented researchers and society from understanding the issues.

“What this prevents is an understanding of sexual-ity that comprehensively describes and investigates the ways in which love, romance, sex, passions and desires are all very much part of growing up and sexuality,” she said.

Church controlling sexuality

Sarah Duff, a researcher and historian at the Wits Institute for Social and Economic Research, said the church, parents and other organisations have tried to control children’s sexuality over the 20th century.

She said adolescents and sexual danger was one of the motivating factors of introducing formal sex education in the early 20th century.

“Urbanisation meant parents and adults worried that the traditional mechanisms of cultural transmission of ways in which adults told children about sex and sexuality broke down. Lessons were without the usual guidance and surveillance of parents. The number of sexual manuals and other interventions multiplied during periods of urbanisation, economic instability and social anxiety,” Duff said.

She said one attempt by adults to regulate children’s sexuality was in the mid-19th century.

“A movement of feminists, churches and social reformers began to gather around the age of consent for girls. Globally, the age was usually in the early teens, in most countries girls around the age of 12 were deemed fit to consent to sexual intercourse,” Duff said.

The age of consent for marriage on the other hand was set higher at 18 and 21.

In 1893, Duff said, the Cape Colony raised the age of consent from 12 to 14.

“However this legislation in the Cape was extended to African women in the eastern district of the colony of Transkei and Ciskei only in 1905. When the campaign to raise the age of consent to 16 in the whole Union of South Africa was launched in 1910, the focus of that campaign was the protection of white girls.”

She said in Natal, for instance, there were different ages of consent for white, African and Indian girls. She said white children were seen as naturally sexually innocent while the innocence of African children was constantly under review.

Duff said in black communities, elders were able to speak openly about sex and these were woven into initiation practices.

“The purpose of initiation was in part to impress on young women and men the behaviour believed to be appropriate to adults. While they might have been fairly experienced sexually pre-initiation, these rites taught them how to behave as husband and wife,” Duff said.

She said the customs began to change as missionaries moved into communities and converted them to Christianity.

“This had a profound impact on African communities. By the early 20th century churches, missionaries and many other organisations were concerned about what was taught at these initiation schools. The Anglican church for instance even appointed a committee of enquiry into how the church would replicate its own form of initiation school which would replace circumcision schools,” Duff said.

She said one of the contradictory issues that made the church look into opening their own initiation schools was that the rate of pre-marital pregnancy was higher among Christian converts than among traditionalists.

The Star

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