Some provisions of the Sexual Offences Act were challenged recently and the court ruled in favour of these changes. Young people between the ages of 12 and 16 can now legally engage in consensual sex. Naomi Meyer asked Samantha Waterhouse of the Community Law Centre's Parliamentary Programme what this means and whether this was a responsible decision by the court.
Hi Samantha, thank you for your time. Could you please tell our readers about your background and how you were involved with the recent ruling regarding consensual sexual activities of young people between the ages of 12 and 16?
I’m currently the Coordinator of the Community Law Centre’s Parliamentary Programme, based at the University of the Western Cape. Among other things we work on projects to promote child protection and child justice. I was previously employed at Resources Aimed at the Prevention of Child Abuse and Neglect (RAPCAN). RAPCAN is a child rights organisation that (along with Teddy Bear Clinic) was an applicant in this matter.
I read the following in the Cape Times: “It is no longer a criminal offence for children aged between 12 and 16 years old to engage in consensual sexual activities with each other, the Pretoria High Court ruled yesterday. Judge Pierre Rabie’s ruling follows an application last April by The Teddy Bear Clinic for Abused Children, supported by the Centre for Child Law, challenging some provisions of the Sexual Offences Act. They requested the court to declare certain provisions unconstitutional as these infringed on a child’s right to dignity and privacy.” Why is the matter of consensual sexual activities between children at all relevant to a clinic for abused children? Is this law not rather a matter for concerned parents whose prepubescents are sleeping around prematurely?
The organisations involved in this application, along with the vast majority of South Africans, share a common goal in this regard: to see young people make healthy, safe, responsible decisions about sexual activity. Generally that means children starting to engage in sexual activity later rather than sooner.
These organisations focus on child protection and on issues of healthy adolescent sexuality and the prevention of adolescent pregnancy.
Unfortunately the criminalisation of consensual sexual acts between adolescents, which has been the status quo in this country for decades, has not been shown to have any effect in preventing sexual activity between consenting young people. It does not prevent young people from choosing to engage in sex, nor does it provide them with the tools they need to make healthy decisions.
Studies indicate clearly that one impact of the law is to create a significant barrier between children seeking advice, information and health care services from adults.
Worse: as a result of this being a crime, we have seen a number of cases where children have been subjected to the fear, humiliation, shame and exposure of having to discuss their behaviour with police and prosecutors after being arrested and sometimes in court. This has an extremely negative effect on these children. Very often it results in significant “skinder” among family members, school friends and community members – in general the girl involved in the interaction is labelled a “slut”.
This law has no bearing on activity that is not consensual – irrespective of the ages of the children. Those acts are still considered crimes under the law.
Two notes related to the framing of your question:
- The law change does not deal only with sexual penetration “sleeping around”, but in fact with any kind of sexual activity, including kissing and sexual touching. The Sexual Offences legislation made these non-penetrative behaviours criminal as well.
- Note that this law or lack thereof does not address the behaviour of most “prepubescents”, as it refers to children over 12 years. Thus any sexual activity with a child 11 years or younger is classified in our law as rape, irrespective of that child’s consent. The organisations concerned strongly support this.
Please tell our readers in simple and practical terms what this ruling means. Also, without infringing on anybody’s privacy or confidentiality, could you share some stories of the kind of cases you’ve had to deal with because of the Sexual Offences Act?
The ruling means that if two young people agree to kiss, touch each other sexually or even engage in penetrative sex the police cannot arrest them.
This law creates three groups of children:
- Children 11 years and younger (under 12 years and under).
- Children 12, 13, 14 and 15 years old (between 12 and 16).
- Children 16 and 17 years old (under 18).
Any sexual act by any person of any age with a child under 12 is an offence.
An act of sexual penetration (oral, vaginal or anal sex) or a non-penetrative sexual act (kissing, touching breasts or genitals with or without clothes on) between children 12, 13, 14 or 15 years old is not an offence. If someone is 17 or 16 years old and they have sex with a child between 12 and 16 years they commit a crime only if they are more than 2 years older than the under 16-year-old. So a 17-year-old commits an offence if he/she has sex with or kisses a 13-year-old, but not a 15-year-old.
This is not actually the same thing as what people are choosing to interpret it to be – the ruling is not intended to “give permission”, but to try to have a more mature response to the situation.
As noted above, concerned teachers, neighbours and parents in some areas have taken consenting children to the police to be charged with the crime. In some cases the boy is taken by the girl’s family, and only once they report the boy is the girl charged as well. In many areas the prosecutors decide not to prosecute the matter, but we’ve seen prosecutions proceed in others – as a way of sending a message to young people. This really tends to humiliate and label the children concerned more than prevent them or anyone else from having sex. They simply become more careful not to be caught.
What were the reasons for opposing this law by the justice minister and the national director of public prosecutions?
You’d need to check with the Department of Justice, but in essence they argue that it provides protection to children. It does not – the sections of the law dealing with sexual exploitation of children and with rape and sexual assault are what provides important protection to children. The section on consensual sexual activities is more harmful than protective.
They argue that police and prosecutors will exercise discretion so that we do not drag young people through an overburdened system for having consenting sexual interactions. This is largely true, but we have seen in the past few years a number of cases where the discretion is to prosecute. So those arguments are weak.
Pierre de Vos writes in his blog about this ruling: “Is it in the best interest of children to turn up to 80% of them into potential criminals?” Do you think this is true? Is that the view of the law: that 80% of 12-to 16-year-olds are sleeping around? Or what else, apart from penetrative sex, used to be included in the Sexual Offences Act?
I have no idea what the view of the law is – the legislators when developing the law indicated their intent to follow the moral norms in society, which are that none of us is keen on young people having sex. My point earlier remains: the law is not the vehicle for achieving this goal. It does more harm than good. If we want to see change in society perhaps we can implement strategies that will be effective! Legislators could have put in place programmes that are actually likely to have more of an impact than criminalisation. Of course such programmes cost money.
We have a lot of research on adolescent sexual behaviour in South Africa. Large-scale surveys. The majority of children between 12 and 16 engage in some form of sexual activity; kissing is extremely common.
Contrary to popular belief 11-year-olds are not generally running around having penetrative sex. It happens, but these are the exceptions to the rule. The trend is for a significant number of children to start with penetrative sex at around 15 years old, but the majority are 17 years old when they first engage in penetrative sex.
So as the law stands (prior to the ruling) the extreme majority of 12- to 16-year-olds would be considered criminal since they engage in kissing and other non-penetrative sexual behaviour if not full sexual penetration.
I see the Department of Justice and Constitutional Development is considering an appeal. Has this law now changed for good?
The law does not change until the Constitutional Court confirms the judgement. So either the case goes to the Supreme Court of Appeal if leave to appeal is granted and it goes through another process of testing there. If the appeal is unsuccessful the Constitutional Court will only then look at the case to see if they confirm it.
If there is no appeal, the Constitutional Court may decide not to confirm the decision. So it’s up to the higher courts now.
You’ve been heard saying, “If people want to deal with why young kids are having sex, the law is not the place for that.” Interesting statement. Is the law a mirror of a society’s moral landscape – reflecting all the seismic changes taking place? Or should the blindfolded Lady Justice not stay completely objective regardless of what happens in society? Also: Is the law not supposed to establish boundaries?
To some extent the law is a mirror for our moral landscape, but not entirely. In a constitutional democracy there are other considerations. So there are some other things where popular opinion is that they should be a crime, but they are not crimes. It’s not only about popular opinion. There is definitely no seismic moral shift happening. Justice is not and never was blind or objective.
Laws do establish some boundaries, but there is such a thing as over-regulation.
If our goal as a society is to promote healthy sexual decision-making then we need to respond to the issues and reasons as to why adolescents engage in sexual activity in the first place. They do it because they are in a developmental stage where they are exploring themselves as sexual beings. They may do it as a result of lower self-esteem: because they want to be loved or are afraid of being rejected, or because it seems that “everyone” is doing it. They also do it because they don’t fully grasp the possible personal, emotional, health and social consequences. So addressing the aspects of this that we can address makes a lot more sense.
Engage with children about these issues, have conversations with them as parents, concerned adults etc. When seeing something sexual on TV or in public or anywhere for that matter, ask them what they think. Listen to their responses. Tell them what you think. Ask them what their friends think. There are many ways to engage in a conversation.
Provide them with information, not just about pregnancy and HIV and other STIs, but also about parenthood, what it means and entails.
The law is not the primary place where our children learn about what is right and wrong. They learn it firstly in their families, secondly in their communities and thirdly in schools. So that is where we need to convey the moral messages we believe and want children to buy into.
Read a blog pondering the changes in the Sexual Offences Act.
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