18 November 2014
The Centre for Child Law notes with concern a media report stating that an amendment bill that will be tabled before Parliament will ‘legalise’ teenage sex. This statement is misleading.
The aim of the amendments to the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 is to decriminalise consensual sexual behaviour between children aged between 12 and 16 years old. This does not amount to legalisation but means that there will be a change in law that eliminates the criminal punishments that these children would face if the Act is left as is. The Constitutional Court has already ruled that the law cannot remain because treating these children as criminals is unconstitutional.
The Act will contain no provisions legalising consensual sexual behaviour and as a result will leave the responsibility of engaging with children on a level that they will understand, and increasing the educational mediums available to them, to parents, schools, religious organisations and other community based interventions.
The consequences of criminalizing these children for consensual sexual behaviour are vast: eg in fear of being reported, children might not access support and health care services when needed; they are humiliated and exposed to offenders by going through the criminal justice system and sex offenders programmes when diverted; and there is even a risk that their names could be included within the National Register for Sex Offenders. Alternative community based interventions would prove to be a much less harmful route.
The amendments do not tamper with the criminalization of any adult sexual activities with children, whether consensual or not. No adult should ever engage in any sexual activity with a child under the age of 16. Any such conduct should remain criminal. All children must be protected from exploitation and violation by adults. These amendments are not about any sexual crimes committed against children, in otherwords, non-consensual acts. These non-consensual sexual activities are criminalised as rape and sexual assault, and must remain criminal.
The submission to parliament by the Centre for Child Law on behalf of the NGOs who challenged the act is available for download here (adobe pdf format)