Christi van der Westhuizen
Christi van der Westhuizen

Don’t kiss me, I’m 16

The recent fiasco with the Sexual Offences Act should serve as an alert about continuing problems dating from before the act’s adoption in 2007 and that have still not received parliament’s attention.

The Western Cape High Court in May upheld a finding that meant the courts could not pass sentences for 29 crimes for which the Sexual Offences Act (SOA) did not explicitly prescribe penalties, leaving victims in the Western Cape in limbo.

Lawyers Against Abuse and the Women’s Legal Centre insisted the Western Cape High Court was mistaken, as the act showed the legislature intended for the courts to “always be able to hand down sentence”. A full bench of the Supreme Court of Appeal vindicated activists’ arguments.

Meanwhile, KwaZulu-Natal and Free State courts had detected no such hindrance and were sentencing perpetrators in terms of the act.

The discrepancy in interpretations serves as a reminder of the reality of opposition, also in the judiciary, to the democratic transformation of apartheid and colonial conceptions of sexuality and sexual rights.

Some in the judiciary have resisted instituting the minimum sentences prescribed for some sexual crimes, arguing that the prescription interferes with judicial discretion. Isn’t it curious that the Western Cape High Court decision amounts to the judiciary itself casting doubt on its right to exercise judicial discretion if the lawmakers don’t explicitly prescribe it?

Commendably, parliament moved swiftly to amend the act within a month after the high court finding. Activists have called on parliament to also address other problems, such as sections 15 and 16, which ridiculously and dangerously criminalise adolescent sexuality.

Since appeals have fallen on deaf ears, the Teddy Bear Clinic and Resources Aimed at the Prevention of Child Abuse and Neglect (Rapcan) are currently challenging these provisions in court.

Section 15 criminalises consensual intercourse between persons aged 12 to 16, in contrast with countries that make exemptions for kids close in age (usually maximum two years apart). Section 16 takes it further by punishing consensual sexual exploration – even kissing – between teens.

The shameful result is that consenting teens merely exploring their fledgling sexualities may be included alongside rapists in the justice department’s register of sex offenders.

The act goes even further by compelling anyone who is aware of consensual sex between 12 to 16-year-olds, including parents, to report it to the police.

Healthcare workers are turned into the “surveillance arm of the law” in breach of their ethical duty to safeguard patient-doctor confidentiality, says Lisa Vetten, director of Tshwaranang Legal Advocacy Centre.

Therefore, the very people that teens could turn to during a stage of great physical and psychological change have been incorporated into a state apparatus seeking sexual control.

The rebuttal that such children are usually diverted for rehabilitation is cold comfort to teens who, before diversion, will still be humiliated into explaining their sexual behaviour to police officers.

Thus the veil of silence that hangs over sex in South Africa, as shown by research, is drawn even more tightly. While healthy sexual interaction is being driven underground, teenagers’ need for information does not disappear, Vetten cautions.

Surveys show that, respectively, up to 34% of teens between 12 and 16 have kissed and engaged in heavy petting, while up to 26% have had sex.

Teens will be left to find the facts of life in the media and pornography, both of which are guilty of wildly unrealistic and frequently bigoted depictions of sexuality.

The act’s punitive approach will deter sexually-active teens from seeking HIV counselling and testing, contraception and abortion. Vetten contends that “nobody wants 12 and 13-year-olds to become mothers and fathers”. Judging by the current moralistic panic about young people’s sexuality in some quarters, one can’t help but wonder.

The political position has changed from encouraging empowerment about sexuality to a clampdown, illustrated by the fact that the SOA contradicts other laws on access to abortion and contraceptives and service providers’ reporting duties.

It is useful to reflect on the history of the SOA’s drafting. Rapcan notes in an affidavit that during the act’s drafting in the 2000s, the justice portfolio committee’s argument for prosecuting young people was to achieve “parity”, as such provisions were ostensibly applied more frequently to boys than to girls in the past.

This parity could have been achieved by prosecuting neither girls nor boys, says Rapcan. Instead, the law as its stands today renders girls more vulnerable to prosecution because pregnancy makes the “offence” more noticeable. This unjust outcome is not surprising.

Research published by the Gender Advocacy Programme (GAP) and Tshwaranang reveals that the chairperson of the justice portfolio committee at the time, Johnny de Lange, had a decisive hand in the writing of the act, even in his later capacity as deputy justice minister.

De Lange’s gender politics is exposed in the autobiography of Pregs Govender, former chairperson of parliament’s committee on women. When she approached him to advance laws that would address the gender iniquities of apartheid, he shouted at her: “Since when are women’s laws the priority?”

The GAP/Tshwaranang research concludes that the SOA “most clearly bears the imprint” of De Lange’s “preferences”, including his insistence on creating another register for sexual offences despite it duplicating the more comprehensive Children’s Act register.

The time has come for parliament to address these anomalies in the act, not only because they are seemingly the result of the idiosyncrasies of one individual but also because they undermine the potential for healthy sexualities in a context already rife with sexual pathology.

This monthly column, which first appeared in the Independent Group’s dailies, is made available by the Open Society Foundation for South Africa to monitor the health of our democracy.

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    • bernpm

      I am not an expert in this legislation at all. So I take your article as a fair presentation of the facts and subsequent causes and effects.
      The description of a “nanny state” attempt to control the morals of the nation, similar to the criminal classification of prostitution.

      Maybe the state should start applying such legislation on corruption.

    • http://none Lyndall Beddy

      Why do we now have so many proscribed sentences in our law anyhow? We used to leave these things to judicial discretion, because all cases are different and should be decided on their merits.

    • Stephen Browne

      Some of the dodgiest law-making this country has seen, and boy have we seen some! Has anyone ever come across a teenager prosecuted under these laws? It doesn’t seem to have been the huge train smash that everyone thought it would be (doesn’t make it any less of a useless law.)

    • http://www.cindynel.co.za peter

      Somehow these clowns cannot seem to get their priorities right. Are there not more serious problems facing this country? Pathetic and an absolute waste of time. If this government thinks it is going to stop kids from behaving badly ( normal ) then it had better think again and make some attempt to address the serious issues facing our country which excludes criminalizing any one from doing what everyone always did anyway and will continue to do as long as there are males and females on this planet, even if some do not know the difference.

    • MLH

      In bringing up a son, the threat of the law was more powerful than my own anger. As a teenage girl, the threat of the law was more feared even than my parents’ anger. It also depends on parental reaction to the law.

      I certainly remember when the threat of ending up in jail kept more boys more nervous of pursuing their own ‘needs’ than now and the law, even then, was used only really where the parents of both parties could not come to some agreement.

      In cases of rape the law would generally be upheld because abortion was not legal, but in pregnancy, parents were expected do decide whether to allow marriage or adoption and the boy’s parents could be required to make payments to whichever end.

      In a country where parents and the state expect kids to ‘fool around’ you have a sure recipe for disaster because the law of consequences is not taught. This, I think, is where we’ve already allowed a 20+ year mistake to take hold. But kids are also left all at sea as far as their ages go: they can leave school at 15 but may not find a job, they can vote at 18 and only then are considered adults, but now the state is considering refusing those adults alcohol until they’re 21. That’s confusing!

      Life was far easier, for kids, parents and the law when we all knew that until 17 we were considered ‘jailbait’ and that we were considered irresponsible kids until we turned 21. Any child caught behaving badly was reprimanded by anyone older and reported to the parents, who…

    • MLH

      …cared enough to do something about it.

    • Suzanne

      Stupid – but entirely predictable. SA has the worst features of the nanny state, and the criminal state. The criminal state – the political elite are above the law and it’s the Wild West, blue lights, and the gangsters that run the town. Who gives a shit about murder, robbery, and extortion? The nanny state on the other hand applies to all the rest just like in the good old USSR – we are worried about teenagers kissing, and our Big Brother state will tell the cowering poor citizens what they may not do in their own homes. A bit like the pathetic Nats with their pathetic immorality act! What a bunch of palookas!