Law change won’t fuel sex

THERE is growing public concern that the amendment of the sexual offences act will encourage or open the door for children to be sexually active.

The amendment does not give children the right to have sex.

Do we have to criminalise children to dissuade or stop them from engaging in any activity? What happened to communicating, disciplining and imparting a value-based education to children that informs them that sexual activity is not appropriate for their age?

Children are sexual beings too and it is developmentally appropriate for them to be curious and experiment with their bodies.

So they need to be assisted to make responsible and healthy decisions about sexual behaviour that can otherwise be risky to their development.

Children should be provided with a sexual education so that they can make an informed and appropriate decision about engaging in sex.

Parents, caregivers, families and faith-based organisations tend to remain silent on the issue of sex because of the level of discomfort in engaging children – hoping that children will abstain.

We live in a sexualised society where sex is sensationalised by the media in movies, music, adverts and so on.

The influence of sex exists; so children need to be engaged on what is appropriate behaviour.

It may be morally wrong for children to engage in sex, but they do it anyway. In fact, there is sometimes pressure from their peers if some teenagers have not had a sexual experience.

The changes that have been made are not about legalising and allowing teenagers to have sex with each other, but about the criminal justice system not being used to replace the sex education that should be imparted to children by their parents, family and faith-based organisations.

If the amendments did not occur, it would imply that teenagers who were pregnant could be criminally reported by the examining doctor.

And due to the large numbers of children who are sexually active and who are pregnant, we would have had more children populating the sex offender register than adults, who are really the criminals – and commit real offences of paedophilia and the like.

Children are not criminals just because they engage in sex.

The issue in the amendment is decriminalising teenagers, not making sex between children younger than 16 legal.

The hearings follow an order by the Constitutional Court, in a matter brought by renowned advocacy organisations such as the Teddy Bear Clinic, that the provisions of the act infringed the rights of adolescents to human dignity and privacy.

The court gave Parliament 15 months to correct the offending sections. Any person 18 or older cannot have sex with a child below the age of 16 – even though the child may consent.

The Criminal Law Amendment (Sexual Offences and Related Matters) Amendment Act was passed by the National Assembly.

The act states that where both children are between 12 and 15 years old, they can consent to sexual acts with each other, regardless of their age difference; but a child of 16 or 17 can only have consensual sexual acts with a child of between 12 and 15 if the age difference is two years or less.

The act also states that before children are listed on the national register of sex offenders‚ a state prosecutor must apply for such an order.

The court must also consider a report on the child’s probability of committing another sexual offence before deciding whether to list them on the register or not.

The amendments to the law‚ known in short as the sexual offences act‚ come as a result of two Constitutional Court judgments.

The act will now go to the National Council of Provinces before getting the final stamp of approval from the president.

In a unanimous judgment, Judge Sisi Khampepe said that sections 15 and 16 of the Sexual Offences and Related Matters Amendment Act were unconstitutional as they infringed on the rights of adolescents to dignity and privacy.

Non-consensual sexual acts with or between children of any age remain illegal and are prosecutable under the law.

The court found that the sections criminalised developmentally normal behaviour and could have a negative effect on the children the act was meant to protect.

It’s time for parents to take responsibility for their roles and start discussing the issue of sex with their children.

Naidoo is an an advocate of children’s rights and guest writer for Childline KZN.