Minor sex not a crime: Judge rules sexual offences law is unconstitutional
16 Jan 2013
Jeanne-Marié Versluis and Sapa
THE Justice Department will study a ruling by the high court in Pretoria against certain sections of the Sexual Offences Amendment Act, an official said yesterday.
Judge Pierre Rabie yesterday ruled that sections 15 and 16 of the act, which criminalise “consensual penetration” between children younger than 16 and older than 12, as well as section 56 (2)(b) of the act, were unconstitutional.
Justice spokesperson Mthunzi Mhaga said the department was “reflecting on all the legal issues canvassed” in the ruling to see whether there were valid grounds for an appeal.
“This judgment has far-reaching implications in the escalating rate of sexual violence among children under the age of 16 years, as seen in many cases dealt with by law enforcement and our courts,” he said in a statement. “The decision to appeal or not will be determined after a proper analysis of the judgment and will take into consideration the interest and rights of the children as dictated by the Constitution.”
The case was brought by the Teddy Bear Clinic for Abused Children and Resources Aimed at the Prevention of Child Abuse and Neglect. The two organisations argued that the sections often resulted in many underage pregnant girls not wanting to have abortions at clinics, as this would lead to criminal charges against them and their partners.
It said the provisions infringed on their rights and expose them to the trauma of the criminal justice system.
Rabie found articles 16 and 56(2)(b) and the definition of “sexual violation” in the law was invalid, because these turned into criminals any minors between 12 and 16 who committed deeds of consensual “sexual violation” with each other.
Rabie said in his verdict many of the deeds that were defined as criminal in terms of the sexual offences and related matters act, were “committed” by large numbers of normal adolescents.
Rabie added that the use of draconian criminal measures in an attempt to persuade adolescents to behave themselves responsibly was a disproportional and ineffective method.
He said the wholesome aim to encourage adolescents to develop healthy and responsible sex lives could rather be addressed through means that did not turn consensual sex acts between adolescents into a crime.
Rabie noted that the definition for sexual violation includes direct or indirect contact between two people’s mouths. Thus all forms of kissing were deemed criminal acts in terms of the law.
He said the act also criminalised any direct or indirect contact between one person’s genitals and any other part of someone else’s body.
This means hugging between fully clad people is a crime in terms of the act.
Rabie also ruled that the minister of Justice and Constitutional Development and the national director of public prosecutions, against whom the application was brought, must pay the applicants’ legal fees.