On 15 January 2013 the Pretoria High Court declared sections 15 and 16 of the Sexual Offences Act unconstitutional. Before the judgment, sections 15 and 16 of the Sexual Offences Act made it a crime for children between the ages of 12 and 15 to engage in any and all conduct of a consensual, sexual nature with one another. The judgment is a great victory for the constitutional rights of children in South Africa, most especially girl children, and I would very much like to explain why this is so – and why all of us, as feminists, should be happy about the judgment.
First, this judgment is NOT about sexual activity that happens when a girl does not want it to happen. Any such activity is rape, or sexual assault, and those crimes are listed in sections 3 and 5 of the Sexual Offences Act (SOA). The judgment is also NOT about sexual activity between a child and an adult. The judgment does not affect the status of rape, sexual assault, or statutory rape at all (sex between a child and an adult).
This judgment is about the fact that sections 15 and 16 of the SOA criminalised any form of sexual activity between children aged 12 to 15 – even the kind that is part of healthy, natural, and normal developmental behaviour . The SOA defines sexual activity so widely that effectively this meant that it was crime for girls and boys between 12 and 15 to have penetrative sex, but also anything from hugging, kissing, holding hands, to cuddling, and petting – even if both consented to it, and wanted to. Both the children would be guilty of this “crime”.
If this law were in place, the following would happen to children if they are caught? Well, they may be arrested, and brought into a police station. They will have to appear before a magistrate, and come into contact with an investigating officer, and could be asked to sign a “warning statement”. In cases where they are not arrested, the children will be issued with a “notice to appear” for an inquiry in a Magistrates Court. The children will be assessed by criminal probation officers, and their parents will be present at this interview. The probation officer must then “discuss” the sexual conduct, and assess whether the children admit responsibility for the offence. Then they will have to participate in diversion programmes along with sex offenders, or they will have to face a trial. If they are found guilty, their names will be entered into the National Sex Offenders Register, where their names will stay for life. This will prevent them from ever working with children when they grow up, and every prospective employer will find their names there.
Think of your first kiss, or the first time a boy or girl took your hand, or touched you in a way that made you feel good. Statistically, most of us are around the ages of 12 – 16 when this first happens to us. What impact would it have had on you to be criminalised, to have to face the criminal justice system? To be arrested for kissing or petting? To have to discuss your most private and intimate feelings with magistrates and probation officers? To face a trial for touching the boy or girl you like in an intimate way? Would this have fostered a positive, healthy sexual outlook? Or would it have traumatised you and made you feel deeply ashamed? If we think about these questions, I believe it is obvious that these laws would traumatise far more than protect.
Which brings me to the most important point I want to make. Before this judgment, the sections in question posed a particular threat for girls! In law there are what we call “competent verdicts”. This means that when a prosecutor cannot get a conviction on, for example, rape, they must try to convict on a lesser charge. In the case of the SOA, section 15 and 16 are regarded as competent verdicts for rape and sexual assault. Now, imagine a date rape situation. A 14 year-old girl is raped by her 15 year-old boyfriend. She reports this to the police, but the police cannot prove that it was rape – as so often happens – due to insufficient forensic evidence. Legally, the boyfriend must now be charged with Section 15 (“consensual sexual penetration”) as a lesser charge, and competent verdict. But here is the catch: section 15 and 16 require BOTH children to be charged! So, the girl starts off as a victim, but is transformed into a perpetrator! Do you suppose that girls will be more likely, or less likely to report rape or sexual assault to the police, if there is a chance that they themselves can be charged with an offence? Girls are also the only ones that can bear a physical marker of sex, in the form of pregnancy, where boys do not. This makes girls “easy targets” for prosecution. Clearly section 15 and 16 affect girls disproportionately to boys, and for that reason alone the sections violate all girls’ constitutional right to equality before the law.
There is a world of difference, as the judgment also points out, between not condoning something and criminalising it. Society may not condone two 12 year-olds having consensual sex, but there is absolutely no evidence, nor was any presented in court when this matter came before a judge, that criminalising consensual sexual activity discouraged, regulates, or corrects the sexual conduct of teens. The law is simply not the right tool for fixing every social challenge we face. We must learn from the failure rate of abstinence campaigns, and realise that the only way we will ever make sure out teenagers are protected, is by being able to have open, honest conversations with them about responsible sexual behaviour, what consent means, and the responsibility of sexual autonomy.
However, as they stood, if an adult became aware of any consensual sexual activity between children aged 12 to 15, section 15 and 16 also made it crime for that adult not to report it to the police. This means that nurses, doctors,counsellors, parents and any other adults that seek to create an open relationship of trust with teenagers would be severely restricted, and inclined “not to ask too much”. How can teens speak openly about their lives and seek guidance if they will get in trouble with the law, and even endanger the very adult to whom they are most likely to speak?
Section 15 and 16 also clashed severely with laws aimed at recognising children’s constitutional rights to access health services, and autonomy in decision making. The Children’s Act states that no person may refuse to provide condoms to a child over the age of 12. The Choice on Termination of Pregnancy Act says that no consent other than that of the pregnant woman or girl shall be required for a termination. These very laws that recognises the reality of the South African context, in which we would rather provide children with condoms and access to reproductive health care services, than preach abstinence only, and risk them contracting HIV, STIs and having babies they cannot hope to care for. But section 15 and 16, with the adult duty to report, would undo the strides these laws have made towards gender equality, and empowering women and girls to make their own reproductive decisions, and to have control over their own bodies.
In the end there is simply no rational connection between section 15 and 16 as they stood, and the aim of protecting our children. It is our collective responsibility as adults to empower our children, most especially our girl children, and to help them to develop healthy, positive sexual behaviour. We cannot abdicate that responsibility, because we are too busy or embarrassed to talk about sex, by inviting the criminal justice system into our children’s private, emotional lives. By doing so, we would in fact be harming our children, exacerbating under-reporting of rape, and severely compromising the fight for gender equality.