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Constitutional Court Legalises Sexual Acts Between Teenagers in South Africa

By Eric Ojo, Pretoria

President Jacob Zuma of South Africa

President Jacob Zuma of South Africa

Section of the Sexual Offences Act that sought to criminalise sexual acts between teenagers in the South African Bill of Rights have been declared unconstitutional and invalid by the Constitutional Court of the country.

The court in a unanimous judgement delivered last week by Justice Sisi Khampepe ruled that it is legal for children between the age of 12 to 16 years to kiss and fondle.

Section 15 of the Act which came into effect in December 2007, clearly stipulated that children aged from 12 and 16 who “commit an act of sexual penetration”, will both be guilty of statutory rape, which the Act defines as, “consensual sexual penetration with certain children”.

In addition, Section 16 of the Act criminalised “acts of sexual violations with certain children”. The Section defines sexual violation to include acts of penetrative sex, fondling, kissing and masturbation.

The court therefore declared these two sections of the Act invalid on the grounds that the acts that were declared illegal were sexual behaviours that children in that age group would naturally engage in as they explore their sexuality.

Justice Khampepe in her ruling, however said in its attempts to guide children and intervene where necessary, the state’s actions should not have a damaging impact on children. She noted that Section 15 and 16 of the Act contained a series of harmful effects.

These effects, according to her, arises largely from the exposure of minors to the harshness of the criminal justice system, and chilling effect of such exposure on the development of a proper understanding and healthy attitudes to sexual behaviour.

“It cannot be doubted that the criminalisation of the consensual sexual conduct is a form of stigmatisation which is degrading and invasive” she said. She equally added that even when such criminal provisions are rarely enforced, their impact, according to her, has a severe effect on the social lives and dignity of those targeted.

The Judge further stated that in the light of the ruling, the Minister of Justice and Constitutional Development, Jeff Radebe must ensure that any convictions of the and sentences imposed on any child under the sections 15 and 16 be expunged.

The Minister was also ordered by the court to ensure that particulars of an adolescents convicted under these provisions of the Act are removed from the National Register for Sex Offenders. The court equally placed a moratorium on all pending cases under sections 15 and 16 of the Act, “pending Parliament’s remedying of the defects” in the Act.

Commenting on the judgement, Mthunzi Mhaga, spokesman for the Department of Justice ad Constitutional Development, observed that the ruling did not necessarily come as a surprise to his department as it was already in the process of looking at the defects in the Act.

Mhaga therefore called on parents and communities to play their part in raising and guiding children, noting that as far as he was aware, no child was in the process of being criminally prosecuted under the contested provisions of the Act.

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