Children’s rights lobby groups say they are greatly concerned that the “last minute” proposals made by the Justice Department seek to render anyone younger than 16 incapable of saying yes to sex, and to repeal sections 15 and 16 of the Act.
Scrapping these sections would mean the crimes of statutory rape and statutory sexual assault were removed from law.
In court papers, Christina Nomdo, the director of Resources Aimed at the Prevention of Child Abuse and Neglect (RAPCAN), details the implications of the proposals – which include rendering children between 12 and 16 guilty of rape. Rape is a far more serious offence than statutory rape.
“Many risks such as arrest, pre-trial detention in prison, refusal of bail, and prison sentences would suddenly loom large in cases that have previously been treated as statutory rape where those risks do not arise,” Nomdo says in an affidavit.
The affidavit was filed last week in response to an application brought in the Constitutional Court by Lechesa Tsenoli, the acting National Assembly Speaker.
Tsenoli’s application was a request to give Parliament until August to amend the 2007 Criminal Law (Sexual Offences and Related Matters Act), and align it with two Concourt rulings.
The two judgments compel Parliament to amend the law to decriminalise consensual sex between adolescents (between 12 and 16 years old), and to take into account the best interests of the child before possibly listing a convicted child sexual offender on the national sex offenders register.
RAPCAN, which was the second respondent in the application, and the Teddy Bear Clinic, which was the first respondent, did not oppose the bid to extend Parliament’s deadline.
Last month, the justice committee held public hearings into the amendments to the sexual offences legislation, receiving more than 900 admissions from the public.
Nomdo and Teddy Bear Clinic director Shaheda Omar had both participated in the public hearings, and in her affidavit, Nomdo speaks on behalf of both organisations in commending the committee for the sensitivity, patience, and fairness demonstrated in handling the amendment process.
The Justice Department proposals tabled before the committee late last month, although not in the form of a bill, came as something of a curve ball.
Nomdo said the proposals were not tabled as a bill, and did not form part of the public hearings, but constituted a “radical departure” from the amendment bill currently being debated by the committee, and threatened to “derail” a smooth and efficient process.
Arguments will be heard by the Concourt early next month.
Justice Department spokesman Mthunzi Mhaga said in an e-mail to The Mercury that the proposals submitted to the portfolio committee flowed from the first few days of the public hearings, where the department had been asked to assist.
As far as consultation on the proposals were concerned, Mhaga said committee chairman Mathole Motshekga had asked the secretary of the committee to forward them to all who have made submissions, to get their feedback. “The concerns that have been or will be raised with the committee will in all likelihood be fully discussed during the committee deliberations on the Bill,” Mhaga said.
The Community Law Centre, University of the Western Cape, explains:
The current sexual offences legislation makes it a criminal offence for adolescents from 12 to 15 years old to engage in any form of sexual activity with consent.
This ranges from kissing and petting through to any form of sexual penetration with any part of the body.
These provisions are problematic for a number of reasons.
They make adolescents into criminals for engaging in healthy adolescent behaviour.
They expose adolescents to police, prosecutor and court questioning and interrogation.
They have resulted in significant public humiliation and shame, as well as deep psychological impacts for some of the adolescents who’ve been charged under these sections.
Criminalising sexual activity has been shown not to prevent it. Measures that are more effective in preventing early and unhealthy sexual activity between adolescents are programmes that encourage non-judgemental communication between adolescents and adults, and those that ensure adolescents have access to health and social services to support healthy choices.
The Centre for Child Law explains:
The amendment bill (in its original form) does not change that any person over the age of 18 is committing an offence of statutory rape or statutory sexual assault when they engage in such activity with a person between 12 and 16 years old.
For this reason, the bill does not lower the age of consent from 16. What the bill does do is seek to protect adolescents who are 12, 13, 14 or 15 years old from being criminalised when they engage in consensual sexual activity with each other. It also adds some protection against 16- and 17-year-olds being prosecuted if they engage sexually with other adolescents who are no more than two years younger than them.
By Leanne Jansen