How should we deal with consensual sex between children under the age of 16?
Commission for Gender Equality & The National Working Group on Sexual Offences
Consultative dialogue: Wednesday, 23 November 2011
South African children under the age of 16 are engaging in sex. The Medical Research Council reports that a quarter of children under the age of 13 are having sex and by the time they reach high school, 50% of learners will have had sex. Another study by the Human Sciences Research Council and Save the Children International reported that the average age of sexual debut for both boys and girls in South Africa is 14, often without their parent’s knowledge. They also noted that children under the age of seventeen in South Africa lack comprehensive knowledge of sexuality, gender, reproductive health and their rights in these arenas.
In an attempt to address the sexual abuse of children, the Sexual Offences Act of 2007 makes it illegal for anyone to engage in sex, or any other sexual conduct, with a child between the ages of 12-16. Prosecution must also be instituted where the parties are children between these ages, even if the behavior is consented to. Further, section 54 (1) of the Act, states that any person who has knowledge of that sexual offence has been committed against a child must report it to the South African Police Services.
These provisions have serious consequences for the sexual and reproductive health of young teenage girls in particular who may be deterred from seeking help or information around pregnancy, HIV and other STIs, as well as contraception and termination of pregnancy due to fear of being reported to authorities. Indeed, healthcare workers, teachers, or parents who fail to report underage children having sex could themselves be charged for not following the law.
By contrast, the Children’s Act of 2008 contains the following provisions: “Every child has a right to access to information on health promotion and the prevention and treatment of ill-health and disease, sexuality and reproduction; confidentiality regarding his/her health status and the health status of a parent, caregiver or family member, except when maintaining such confidentiality is not in the best interests of the child.” The Act further states that any child (from age 12) who obtains condoms, contraceptives or contraceptive advice in terms of this Act is entitled to confidentiality in this respect subject to section 110.
How are these conflicts in legislation to be addressed in ways that promote the best interests of children? What are the alternatives to criminalization?