In partnership with the Commission for Gender Equality (CGE), the Shukumisa Campaign held a consultative dialogue on 23 November to discuss how best to deal with the criminalization of consensual sex between underage children. The dialogue was prompted by concerns around how parts of sections 15 and 16 of the Sexual Offences Act of 2007 are implemented.
- Some teenage girls who initially laid charges of rape are subsequently being charged with statutory rape (or consensual sexual penetration)
- Teenage girls have been threatened with charges of consensual sexual penetration when they allege rape, discouraging those girls from making a complaint
- Pregnant teenage girls are being charged with consensual sexual penetration
- At one health clinic police officers asked for the records of all underage pregnant teenage girls so that they could consider pressing charges against the girls
These highly undesirable consequences of the law are not in children’s best interests. To address these concerns, the meeting concluded with a number of important recommendations, some of which are set out below.
- We do not support lowering the age of consent, which should remain 16 years. Adults who have sex with an underage child must always be charged with crimes. But when we are dealing with two underage children having consensual sex with one another, the approach should be different
- It should be left to parents and caregivers to deal with consensual underage sex – not the police and courts. This means we need to develop policy around consensual underage sex, rather than resorting to laws and punishment. Such policy is the responsibility of the Departments of Health, Social Development and Basic Education
- A policy response to underage sex would need to:
- strengthen the life skills curriculum taught at schools – focusing less on the mechanics of sex and more about relationships
- look at equipping very young mothers and fathers with parenting skills
- promote parenting programmes to help adults talk to their children about sex, as well as help those parents who feel unable to deal with their children’s sexuality
- ensure that supervised after-school care and recreation facilities are made widely available to children, as well as encourage employers to provide free child care facilities in workplaces. This would ensure children are not left to their own devices while their parent(s) work
- We will support the case brought by the Child Law Centre on behalf of RAPCAN and Teddy Bear Clinic which challenges the constitutionality of parts of sections 15 and 16 of the Sexual Offences Act. A series of fact sheets will be developed to help people understand the legal technicalities and arguments.
- The CGE and the Department for Women, Children and People with Disabilities (DWCPD) will advocate for the Department of Justice and Constitutional Development (DoJ&CD) to subject the Sexual Offences Act to a consultative review
- The DWCPD, along with the DoJ&CD, is establishing a task team to bring some order to the very different ages at which children are allowed to do different things (like smoke, buy condoms, or have sex) Representation of the children’s rights sector such as the Yezingane children’s network will be invited to become part of this initiative
The dialogue was a good one but it’s clear that sorting out the law is only one part of the challenge of underage sexual behavior.