Why the criminalisation of consensual sexual exploration between teenagers is unconstitutional

Is it in the best interest of children to turn up to 80% of them into potential criminals? Is it constitutionally acceptable for teachers, principals and parents to abdicate their responsibility to educate children about sexual matters by potentially criminalising all forms of kissing, cuddling, touching and other forms of sexual exploration between children, despite the fact that such behaviour are ordinarily associated with the normal physical and emotional development of children? Thankfully, Judge Piere Rabie of the North Gauteng High Court this week ruled that it would not. Predictably, the sexual perverts and prudes who see sex as something dirty, disgusting and corrupting are up in arms. This is why they are wrong.

The High Court was asked, among others, to consider the constitutional validity of section 15 and 16 of the Sexual Offences Act. These sections prohibit 12 to 15 year old adolescents from engaging in voluntary and consensual conduct with one another that would include anything from kissing, holding hands and light petting, to oral sex and other forms of sexual intimacy including sexual intercourse, if there is more than a two year age gap between them. If a child of 15 kisses a child of 13 both commit an offence. However, if a child of 17 kisses a child of 15 only the 17 year old can be prosecuted. The Act therefore provides an incentive for children younger than 16 to engage in sexual activities with people older than 16.

The Act also states that when a child deceives an accused into believing that he or she is already 16, then the older child or adult will not be guilty of an offence. This means that when a girl pretends to be 16 (but is, in fact, 15) and has sex with a 16 year old boy (or kisses that boy), neither of them could be prosecuted. However, if the same 15 year old girl has sex with (or kisses) a 15 year old boy, both could be prosecuted because the exception does not apply to children younger than 16.

The Act further places a legal duty on any person who has knowledge that any of these sexual offence have been committed against a child must report such knowledge immediately to a police official and failure to do so constitutes an offence for which the person is liable on conviction to a fine or to imprisonment for a period not exceeding five years. This means that where a 15 year old boy informs his mother that he has kissed a 17 year old girl, his mother will potentially become a criminal if she does not report her child to the police.

The Act bestows a discretion on the NPA to decide on whether to prosecute the children, but requires the NPA to prosecute both parties involved in the sexual activity if they are both younger than 16, regardless the circumstances. However, the Act does not provide any guidelines for how this discretion should be exercised, meaning that the enforcement of these criminal prohibitions will necessarily be selective and arbitrary.

According to statistics submitted to court between 39% and 80% of adolescents surveyed in Cape Town and Polokwane had engaged in kissing; between 25.8% and 33.8% had engaged in heavy petting; and between 15% and 26.8% had engaged in vaginal sex. The reality is that most adolescents experiment with their sexuality and this is recognised by our law.

Thus, in order to protect adolescents against HIV infection and pregnancy, section 134 of the Children’s Act prohibits any person from refusing to sell condoms to a child over the age of 12 and requires the provision of condoms to all children over the age of 12 on request where such condoms are provided or distributed free of charge. Contraceptives other than condoms may be provided to a child on request by the child and without the consent of the parent or care-giver of the child if the child is at least 12 years of age. The Choice on Termination of Pregnancy Act further provides that “no consent other than that of the pregnant woman shall be required for the termination of a pregnancy”, meaning that any 13 year old is entitled to terminate her pregnancy without knowledge or consent of her parents or caregivers.

The expert evidence submitted to the court indicated that “given their developmental stage and their developmental tasks, it is not unusual or necessarily unhealthy and harmful for adolescents to engage in sexual behaviours as they begin to learn about their sexuality and become more mature in several life domains.” Experts defined “healthy” sexual behaviour as “behaviour that is mutually consensual, wanted desired, non-violent, safe (in terms of using methods to minimise risks of STI transmission and pregnancy), and for which the individual feels emotionally and physically ready.” Different children will obviously be ready for different forms of sexual exploration at different stages of their lives. The best possible way to help children deal with their sexual development in a healthy manner is to ensure that they seek out advice and help from appropriate individuals.

If one criminalises consensual sexual acts, this will discourage adolescents from seeking help with respect to their sexuality, because they may then be prosecuted for such behaviour and because it reinforces the social stigmas and taboos around sexuality. Because the Act silences and isolates adolescents regarding their sexual exploration, it makes unhealthy behaviour and poor developmental outcomes more likely and does not advance the best interest of children as required by section 28(2) of the Constitution. As the court pointed out:

This would also increase the likelihood that adolescents will engage in risky behaviour by making it impossible for caregivers to provide advice, counselling and support on issues regarding the child’s sexuality. Such caregivers would obviously also, from their side, be reluctant to enquire too much and would thus be inhibited in their actions, and actually be prevented from performing their duties as they are supposed to do. The existence of the offences also increases the risk that children will experience unhealthy sexual contact, by teaching them that consensual, developmentally normative sexual behaviour is wrong and deserves to be punished.

There is an even bigger problem with the impugned provisions: it may discourage rape survivors from reporting the rape. Because it would be far easier for the NPA to prove consensual sex occurred between the minor and an adult, than it would to prove rape occurred, there is a danger that the NPA will tend towards pursuing a charge of consensual sex.  Where the alleged rapist is under 16 years old, the victim of the possible rape must herself also be charged with contravening section 15. It would then be for her to prove that the sex was non-consensual and thus avoid conviction under section 15. Failing this, she would be convicted.

The problem with these provisions is that it treats children not as individual social beings. Instead, in an attempt to impose a narrow, moralistic, view of sexuality not in line with the  lived experience of children, it runs the risk of turning many children into criminals for no other reason than that they explored healthy  sexual behaviour as part of their normal development as human beings. To emphasise this point, the High Court quotes from the Constitutional Court judgment in S v M (Centre for Child Law as Amicus Curiae) where the purpose of the children’s rights guaranteed in section 28 of the Constitution is described as follows:

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.

As with all High Court orders declaring invalid legislative provisions, the order of invalidity will not come into effect until it is confirmed by the Constitutional Court. For the time being, it thus remains a criminal offence for a 15 year old to kiss or hold hands with a 13 year old, which might come as a relief to some parents who believe the criminal law should do their parenting for them, but is not in the best interest of children exploring their sexual awakening in the normal and healthy manner.

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