Constitutional court judgment on sections 15 and 16 of the Sexual Offences Act: Consensual sexual conduct between adolescents 12 to 16 years
The Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007– hereafter ‘the Act’ – in force from 13 December 2013, criminalised consensual sexual conduct between adolescents aged 12 to 16 years.
It also compelled adults (whom the adolescents confided in) to report these crimes. If convicted for consensual sex, the consequences included that adolescents’ names would be entered into the National Register for Sex Offenders. The constitutionality of the sections 15 and 16 of the Act were challenged by the Teddy Bear Clinic for Abused Children and RAPCAN – Resources Aimed at the Prevention of Child Abuse and Neglect – represented by the Centre for Child Law. The North Gauteng High Court made a ruling on 15 January 2013, declaring the sections constitutionally invalid. The matter was referred to the Constitutional Court for confirmation and judgement was handed down on 3 October 2013.
This brief will explain what the case was NOT about; what the core of the case was; the evidence on adolescent sexuality; the ruling of the Constitutional Court on the constitutional validity of the sections of the Act; the order of the Constitutional Court; and, finally, the advocacy position of RAPCAN in this matter.
What was the case NOT about?
There is much confusion that this case was about lowering the age at which children may consent to sex. In fact, this was not the case at all. Here are some key issues that were not part of this case:
- It was not about whether children should or should not engage in sexual conduct.
- It was not about whether Parliament can set a minimum age for consent to consensual sexual conduct.
What were the core Constitutional issues in this case?
The case focused on a far narrower issue:
Is it constitutionally permissible to criminalise children in order to deter early sexual intimacy and combat the associated risks (the stated aims of the Act)?
The Constitutional Court considered whether the limitations placed on adolescent freedoms could achieve the aims of the Act. Therefore the court considered:
- Are sections 15 and 16 of the Act Constitutional in that they criminalise children for engaging in consensual sexual conduct?
- Are the fundamental rights to dignity and privacy unreasonably and unjustifiably limited and do the limitations serve the best interest of the child?
What were some of the expert findings on adolescent sexuality presented in this case?
The court considered the evidence of Flisher and Gevers who considered over 40 pieces of academic work on adolescent sexuality. Some key issues were highlighted:
- South African children reach physiological sexual maturity during adolescence (ages 12-16 years).
- Their experiences during this transformative period have long lasting effects that shape their adult lives.
- During adolescence children ordinarily engage in some form of sexual activity from kissing to masturbation to intercourse.
- Children should be appropriately supported by adults in their lives to enable them to make healthy choices.
- The majority of South African adolescents between the ages of 12 and 16 years are engaging in a variety of sexual behaviours as they begin to explore their sexuality.
- Sexual experiences during adolescence in intimate relationships are developmentally significant and normative.
- If adolescents are criminalised for consensual sexual conduct the negative emotions such as shame and anger will have a negative impact on their development and may lead to the development of negative attitude to sexual relations.
- These negative feelings will inhibit adolescents from seeking help or being open about sexuality in order to avoid the emotional distress and problems which are unlikely to be prevented in the future.
- If children don’t seek advice from adults they will not be able to provide the necessary guidance and support children may need.
What was the ruling of the Constitutional Court?
The court found that sections 15 and 16 of the Sexual Offences Act infringed adolescents’ Constitutional rights to dignity (s10), privacy (s12) and the best interest of the child (s28(2)). The court ruled that when adolescents are publicly exposed to criminal investigation and prosecution they will be stigmatised and shamed. The right to privacy protects the intimate aspects of adolescents’ lives and allows adolescents to develop relationships without interference from the outside community. The offences in the Sexual Offences Act allow the criminal justice system roleplayers to scrutinise and assume control of the intimate relationships of adolescents. Trusted third parties are obliged to disclose information which may have been shared with them in the strictest confidence, on pain of prosecution. These reporting provisions create a rupture in family life and invite the breakdown of parental care by severing the lines of communication between parents and their children.
What was the order of the Constitutional Court?
- Sections 15 and 16 of the Sexual Offences Act are constitutionally inconsistent and therefore invalid because they violate children’s rights to dignity and privacy.
- Parliament has 18 months to correct the defects in light of the judgment.
- A moratorium was placed on investigations, arrests, prosecutions and proceedings in relation to these sections of the Act.
- The Minister is required to take all steps to remove all details of children convicted on sections 15 and 15 of the Act from the National Register for Sex Offenders and expunge their records.
- Government was ordered to pay the costs of the applicants in this case.
What should our perspective on children’s rights be?
The Constitutional Court quotes Judge Sachs in a Constitutional matter from 2007. It gives us a perspective of how the Constitutional Court views children’s rights:
“Individually and collectively all children have the right to express themselves as independent social beings, to have their own laughter as well as sorrow, to play, imagine and explore in their own way, to themselves get to understand their bodies, minds and emotions, and above all to learn as they grow how they should conduct themselves and make choices in the wide social and moral world of adulthood.”
What is RAPCAN’s advocacy position in relation to the outcome of this case?
In the 18 months that Parliament has been given to amend the Act, civil society organisations and citizens will be given an opportunity to inform this law reform process. The Constitutional Court has guided that we should not be over-protectionist in our approach to the extent that we harm children – so we must ensure that their best interest is served. In addition, we must come to terms with the fact that the independence of children and adolescents should be fostered and their privacy protected. RAPCAN has taken the following stances for advocacy during this process:
- Attempting to use adult power to control adolescent behaviour could lead to more harm than good.
- Humiliating and withholding sexuality information from adolescents is harmful to their positive growth and development.
- Adolescents need information from non-judgmental and caring adults to inform their life choices.
- Adults need to include sexuality information in talks with adolescents to guide normal child development.
- Adolescents should be empowered by adults to make good, independent decisions about sexuality and life choices.