*Since the time this article was written, this bill has been written into law.
It is hard to remember what it was like being twelve, but I do remember that by that age I had started to notice boys. Certainly by fifteen they were well within my radar.
I imagine that most of us will remember our first crushes and how magical these were, the electricity of kissing someone for the first time, or holding their hands.
The definition of how old you have to be to make certain decisions in South African law is complex. The Children’s Act defines a child as anyone under the age of 18, and that’s how old you have to be to vote.
However, many other laws have different definitions – children can technically work from 16 years old, and can access information about their sexual and reproductive health as well as contraception from 15.
So there is some conflict in the law about what types of decisions you are able to make at what ages.
In 2013, the Pretoria High Court declared certain sections (section 15 and 16) of the Sexual Offences Act to be unconstitutional.
These sections made it criminal for children between the ages of 12 and 15 to engage in sexual activity with one another.
To be very clear, this ruling doesn’t apply to non-consensual sexual activity, any sexual activity that is non-consensual remains criminalised.
Under the old legislation, the definition of sexual activity was so broad that it meant that children between these ages could be criminalized for healthy sexual developmental behavior like kissing, hugging, holding hands and petting.
This meant that even when children between these ages wanted to do these things, they could be convicted of a crime.
As Sanja Bornman asks in this piece, "what impact would it have on you to be arrested for kissing or petting?" Bornman goes on to present what is perhaps the most worrying potential of the law in its current format:
"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!"
This is not just an extreme example. In the well-publicized Jules High School case, where a young female learner was gang raped on video, because there was insufficient evidence she was also charged for the crime.
So it’s clear that there is a need to re-look at these sections of the law to allow for healthy sexual development, and to protect children who are raped or abused from being transformed from victim to perpetrator.
On this page, there is a useful infographic to explain what the amendments are proposing.
This month the Sexual Offences Act is under scrutiny in Parliament for the above reason, and to discuss the placement of child offenders’ names on the National Register of Sexual Offenders (for more details about this, see this piece).
Interested parties were invited to make submissions on these topics. As of the 3rd of February, the Portfolio Committee on Justice indicated that they had already received over 400 submissions on the topic.
Public hearings will start on the 10th of February.
There is the risk here, that our profound societal discomfort with sexuality at all ages may place children in a risky situation.
If the law says that what they are doing is wrong, and this is the message that they receive, when they do need help (medical assistance, contraception, abortion, or simply sexual education) they are more likely to face stigma, or to be afraid to visit them at all.
It seems dangerous to put children at risk, and to leave them in fear, just because we’re uncomfortable with their sexuality.
For many of us, the age brackets of this piece of legislation might seem confusing. The Act says that children under the age of 12 are not able to consent to any form of sexual activity.
This will not change with the proposed amendments. In thinking about this issue, it might be instinctive for adults, especially parents to think that it’s safer for sex between these age groups to be restricted, or to say that a 12 year old cannot truly understand what they’re doing.
But, a great deal of research has been done on the stages of sexual development, research that indicates that these brackets are appropriate for the ability of children to understand their actions.
In my opinion it is more important to create a context where children are able to learn how to say 'yes' and 'no' to sex safely, and with access to all the available information, than to suggest that making consensual sex a crime will stop them from doing it.
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