Criminalising adolescent sexuality -- murky waters

I went to a thrilling dialogue at the Commission for Gender Equality last week. The topic was the ages of consent for sex, in terms of our legislation, and the complications that the current legislation has.

At the moment the law (the Sexual Offences Act) says that if you’re 16 years and older you can consent to sex. This means that if you’re 16 and older, and having sex with someone 16 years and older, and the sex is consensual, then in terms of our law all is fine and well. It also means that from 16 years and older, if someone has sex with you (including oral sex) without your consent, and you report it they will be charged with rape.

If you are younger than 12 years old (ie up to 11 years 11 months and 31 days old) in terms of the law, you are too young to consent to sex, and any person that forces you to have sex with them or to engage in sexual acts is committing rape or sexual assault. This applies even if you have told them that you would like to do this, or agreed to perform the sexual act. Despite your agreement or willing participation, the law says that you are too young to agree, and so what they are doing is rape. What this also means is that two children who are younger than 12 who have sex with one another are technically breaking the law. But the Child Justice Act deems these two below the age of criminal capacity, and so alternative justice processes such as diversion programmes must be pursued.

Therefore according to the law, if you’re younger than 12 you can’t say yes, and if you’re 16 and older you can. What about if you’re between 12 and 15 years, 11 months and 31 days? What does the law say about this age group? Well, it’s quite complicated.

If you are between 12 and 15 years, 11 months and 31 days you are still legally too young to consent to sex, and yet according to research done on children, sexuality is part of normal childhood growth. Indeed most South Africans have their first sexual experience in adolescence. What our law says is that anyone older who has consensual sex, or commits sexual acts, with someone between 12 and 15 years, 11 months and 31 days is committing statutory rape or statutory sexual assault. The complexity arises if the two people having sex fall within this age bracket. Technically they can both be charged with statutory rape or assault, even if they have both consented to sex or the sexual acts (including kissing as defined under our law). If they are convicted of this crime, then they will never ever be able to work in a position that allows them contact with children.

The legislation as it stands was formulated with the intention of protecting children from sexual predators, but the unintended consequence of this legislation is that it criminalises consensual sexual activity between adolescents. Even more problematic are further clauses in legislation that aim to increase the reporting of the abuse of children.

The Sexual Offences Act says that any person must report knowledge of a sexual offence to the SAPS. The Children’s Act says that certain professionals (specified in the law, social and healthcare workers for example) must report a reasonable belief to a choice of organisations from a range of people (department of social development, SAPS, child services). In addition, The Constitution says that all measures in response to child abuse must be performed with the best interest of the child in mind. At the same time we have other legislation that entitles adolescents to termination of pregnancy and condom access, without the healthcare workers being legally required to tell the parents of those seeking access. It is all a bit murky when it comes to this age group.

It was for this reason that the Commission for Gender Equality held the dialogue in the first place. At present the Teddy Bear Clinic and Rapcan are working with the Centre for Child Law on a test case that will attempt to illustrate the legal difficulty with this section of the law. Keep your eyes out in the media for more on this case.