By Sapa and Yolisa Tswanya
Cape Town - Criminalisation of sexual conduct between consenting adolescents is unconstitutional, the Constitutional Court has ruled.
On Thursday, the court confirmed a lower court’s order that sections 15 and 16 of the Criminal Law Amendment Act, which relate to sexual offences, were unconstitutional.
The unanimous judgment, written by Judge Sisi Khampepe, was published on the court’s website on Thursday.
The sections infringed on the rights of adolescents between 12 and 16 to dignity and privacy, and further violated the best interest principle contained in section 28(2) of the constitution.
Relying on expert evidence, the court concluded the impugned provisions criminalised developmentally normative conduct for adolescents and adversely affected the very children the act sought to protect.
The court said the effects of the impugned provisions were found not to be rationally related to the State’s purpose of protecting children.
“We must be careful, however, to ensure that, in attempting to guide and protect children, our interventions do not expose them to harsh circumstances which can only have adverse effects on their development,” said Khampepe.
She said the matter was not about whether children should or should not engage in sexual conduct, nor was it about whether Parliament should set a minimum age for consensual sexual conduct. Khampepe said the court was concerned with a far narrower issue: whether it was constitutionally permissible for children to be subject to criminal sanctions to deter early sexual intimacy and combat the risks associated therewith.
The judgment declared invalid provisions of the act that criminalised consensual sexual conduct between adolescents. The criminal prohibitions against non-consensual sexual conduct with children of any age remained in place.
Criminal restrictions against sexual activity between adults and older children on the one hand, and adolescents on the other, also remained.
Childline national co-ordinator Joan van Niekerk told the Cape Argus Childline was pleased with the ruling.
“We are 100 percent delighted by the ruling, we say it is about time. From the time it was passed we objected to it, we found it to be very child- unfriendly.”
Van Niekerk said Childline had not been given the opportunity to “make their voices heard” before it was passed.
“We were denied public participation, there were absolutely no public hearings on this. But we think it violates children’s rights to health care. We are pleased to see that the children who were convicted under this act will see their convictions expunged.”
Van Niekerk said it was important to understand that the ruling did not mean that the age of consent had been reduced but that adolescents who consent to sex would not be criminalised for it.
Paula Proudlock, child rights manager at the Children’s Institute said the institute was “elated by the judgment”.
“We have been getting so much confusion from doctors and nurses because if an adolescent came in for contraceptives and HIV tests they would have to report them to the police, but it is their obligation to treat them.”
Proudlock said many teens were afraid of getting help from professionals because they were afraid of be handed over to the police.
The judgment suspended the declaration of invalidity for 18 months to allow Parliament to amend the provisions.
Khampepe ordered a moratorium on all investigations, arrests, prosecutions and criminal and ancillary proceedings (regarding adolescents) in relation to sections 15 and 16 of the act. This remains until Parliament has remedied the defects identified.