Concourt rules in favour of consensual sex among teens
TEENAGERS have received the goahead to kiss, hug and have consensual sex with each other without the threat of a criminal record.
This was after the Constitutional Court ruled the law criminalising such acts unconstitutional yesterday and gave parliament 18 months to fix it.
In doing so, it confirmed an earlier high court decision.
The court held that making such behaviour a crime – when it was part of normal adolescent development – would do more harm than good.
The law – contained in two sections of the Criminal Law (Sexual Offences and Related Matters) Amendment Act – not only infringed on the rights to dignity and privacy of children aged 12 to 16, it was also not in their best interests.
The law made it a criminal offence for children aged 12 to 16 to engage in acts like consensual kissing, oral sex, heavy petting and sex with each other if there was more than a two-year age gap between them.
Doing so could have landed them with criminal convictions and their names inserted in the National Register for Sex Offenders.
The law also obliged anyone aware of such behaviour to report it to the police or face five years in prison.
The two NGOs that challenged the law – the Teddy Bear Clinic for Abused Children and Rapcan – argued that the law contributed to social taboos and obliged organisations like theirs, parents and teach- ers to report children who came to them for guidance.
The Justice Department opposed the matter, while the National Directorate of Public Prosecutions said it would abide by the court’s decision.
The law, in effect, treated a 13-year-old girl and her 16-year-old boyfriend, who consented to sex, kissing or other such behaviour, as rapists and criminals.
The court found it had a “severe effect” on adolescents’ social lives and dignity.
“It cannot be doubted that the criminalisation of consensual sexual conduct is a form of stigmatisation which is degrading and invasive,” it ruled.
Also, including their names on the sex offender register would have harsh consequences. They would not be allowed to adopt or foster children and it would limit their future employment options.
The court suspended all investigations, arrests, prosecutions and criminal proceedings relating to the law until it was amended.
It said prohibitions against nonconsensual sexual conduct with children and against sexual activity between adults and children remained.
Justice Department spokesman Mthunzi Mhaga said later the names of any children put on the sex offender register under this law would be removed.
Rapcan executive director Christina Nomdo welcomed the judgment. “Adolescents not only have the right to protection, but can also participate in decisions that affect their lives,” she said.