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‘Sex with a child is always rape’

By Zelda Venter Time of article published Apr 28, 2015

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Pretoria - Sex with an 11-year-old is a criminal offence, even if the child consented. And the offender should feel the full might of the law.

This was the message of the High Court in Pretoria when turning down a man’s appeal against his life sentence for raping the daughter of a family friend.

The man, in his 20s and who cannot be identified to protect the child, lodged the appeal against what he deemed a shockingly high sentence.

His defence was that the child insisted they have sex because she loved him. He said he had obliged to prove his love. He told the court that when he asked, the girl said she was 16, although she did appear to be younger. The man said they had consensual sex.

But Judge NV Khumalo said the law was clear that whether a child of 11 gave consent or not, having sex with such a young child was rape.

“Consent of an 11-year-old is irrelevant as it is not recognised in law. A child under 12 cannot, in terms of the law, agree to have sexual intercourse. Therefore whether consensual or not, it is a severe criminal offence to have sex with a child under 12. She is in terms of the statute incapable of giving consent.”

The judge said an 11-year-old child was not sexually mature. It was highly unlikely that she would be able to make an informed decision about sexual activity. Children of this age are too young to even think about sex as they don’t even grasp the concept, he said.

Judge Khumalo said the argument that the court should have found that there was consensual sex couldn’t be entertained. He warned that the law was also applicable to children between 12 and 16 and perpetrators could face life behind bars.

The man said the girl and her mother came to visit his parents in September 2009. She told him she was in love with him and wanted to have sex.

He said she told him she was 16 and he told her they should wait until she was 21. She did not relent and he eventually had sex with her to “prove his love” and because he wanted to marry her, he said.

But, the court said it was clear when she gave evidence that the girl was not 16 and physically still a child.

The girl admitted she loved the man, but said it was his idea to have sex. She only wanted to “kiss”.

Her mother was adamant that she introduced her children as being an 8-year-old and 11-year-old to the man and his family. She became suspicious when she saw the man and her 11-year-old whispering from time to time into each other’s ears.

She found out what happened when she was called by the school as her child tried to commit suicide. When she confronted the man, he told her he wanted to marry her daughter. A social worker testified that the child had not yet reached sexual maturity, was not equipped to deal with sex at her age and did not fully comprehend what sex entailed. She said she gave in to the man’s sexual advances, as she wanted to “keep him”.

Judge Khumalo said the law was clear that sex with a 11-year-old constituted rape. The prescribed sentence was life imprisonment. He had no choice but to confirm it.

Pretoria News

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