South Africa’s Constitutional Court has declared unconstitutional sections 15 and 16 of the Criminal Law Act, which criminalised consensual sexual activity between children (even kissing).
The decision upholds a January 2013 ruling by Judge Pierre Rabie of the Pretoria High Court that certain sections of the Sexual Offences and Related Matters Amendment Act (2007) were invalid because the range of sexual activities were defined too broadly, even making consensual kissing, light petting and hugging between children a criminal offence.
The presiding judge Pierre Rabie said that the Act criminalised conduct “virtually every normal adolescent participates in at some stage or another”.
Under the law, which supposedly sought to protect children against abuse, children could have been charged with statutory rape – despite having consented – and risk having their names being listed in the national sex offenders’ registry.
Any person who was aware of these activities between children was obliged to report them to the police or face a prison term themselves.
This meant that if a girl under 16 became pregnant and went to the doctor, the doctor would have had to report her to the police.
In addition, if a young person was raped and complained to the police but there was no conviction, the young person could have then be charged with a criminal offence themselves.
The Department of Justice and Constitutional Development now has 18 months to amend the relevant provisions.
The Constitutional Court has also ordered Justice Minister to ensure that the details of any convicted children would not appear in the National Register for Sex Offenders and that such a child would have his or her record expunged.
The criminal prohibitions against non-consensual sexual acts with children of any age will remain in place.
The sections in question make it an offence for children 12 to 15 to engage in consensual sexual acts, including kissing and light petting.
Any person – parents, teachers or nurses – aware of these activities between children has to report them to the police or face a prison term themselves. Both children can be be charged with statutory rape, despite having consented, and they risk having their names listed in the National Register for Sex Offenders.
The law was drafted with the intention of protecting women, children and people living with disabilities who were raped or sexually abused.
In his judgment, Judge Rabie said that the range of sexual activities was defined so broadly, that it included conduct that “virtually every normal adolescent participates in at some stage or another”.
“It is for this reason that the applicants submitted that the term ‘sexual violation’, is a misnomer, as the definition includes virtually every conceivable form of physical contact, even where it is only tangentially of a sexual nature.”
He said that if this behaviour was conducted in ways that were “consensual and respectful” it contributed to a positive and healthy development.
“The use of damaging and draconian criminal law… to attempt to persuade adolescents to behave responsibly is a disproportionate and ineffective method which is not suited to its purpose.
“There are plainly less restrictive means available for achieving the purposes sought to be pursued.”
The Teddy Bear Clinic and Resources Aimed at the Prevention of Child Abuse and Neglect (Rapcan), represented by the University of Pretoria’s Centre for Child Law, launched a constitutional challenge against the offending sections of the Act. A number of organisations working with children had planned to challenge the act’s constitutionality since at least 2010.
“Rapcan wants the decision of the High Court to be confirmed because it recognises the importance of children’s right to dignity, privacy and their right to participate in decisions about sexuality, especially when engaging with their own peer group.
”Professionals and parents should be able to provide children with the necessary support and guidance about sexuality to make informed decisions without fear of incriminating the child or themselves,” said Lalu of Rapcan.