The law, like the suburban American house, is designed to order a particular pattern of relationships, many of them oriented around the heterosexual nuclear family. For real people in contemporary circumstances to inhabit the house the law built, one has to find side doors and discreet corners, while the dominant space changes little and the façade remains unaltered. The two big L.G.B.T.-rights Supreme Court victories that came before Bostock—Windsor and Obergefell—did exactly that: they carved out a place for monogamous same-sex couples who want to marry (statistically, these are more apt to be white middle-class people like the plaintiffs) in the house of the American nuclear family.
The National Prosecuting Authority (NPA) has been taking a lot of flack recently. The President suspended its boss and it has been vilified by pro-Zuma supporters for its handling of the Jacob Zuma case. So I am hesitant to add to its misery. Yet, after reading its submission to the Constitutional Court in the case of Geldenhuys v National Director of Public Prosecution (to be argued on Thursday), I have to wonder whether they could not at least have paid someone to prepare a legally coherent and constitutionally informed document to assist the highest court in the land in this case.
The document reads like a second year assignment and not like a legal document prepared by senior lawyers with at least some grasp of logic and the legal issues involved.
The case deals with an appeal of the Supreme Court of Appeal (SCA) judgment which declared invalid sections of the now repealed Sexual Offences Act which set the age of consent for sexual intercourse at 19 for same-sex sexual acts, while setting an age of consent at 16 for heterosexual sexual acts. The SCA rightly found that these sections unfairly discriminated against gay men and lesbians on the ground of sexual orientation.
The NPA concedes that these provisions had been discriminatory but argues that the age of consent for both hetero- and homsexual intercourse should be set at 18 – and not 16. At the end of last year Parliament passed the Criminal Law (Sexual Offences and Related Matters) Amendment Act No. 32 of 2007 which fixed the age of consent for everyone at 16 and the NPA is not happy about this, arguing that this age of consent is unconstitutional.
The NPA – in a very thinly argued submission – argues that because section 28(3) of the Constitution defines a “child” as someone under the age of 18 years and because the Constitutional Court has found that the State is under a Constitutional obligation to combat child abuse, the age of sexual consent should have been fixed at 18 and then continues:
Also worrisome is the failure by the legislator to harmonize the age of 16 years in sections 15 and 16 of Act 32 of 2007 with the other provisions in the Act. For instance, section 18 makes it an offence for a person to groom a child under the age of 18 years in order to have consensual sex with such a child. If the person then does indeed proceed to sexually penetrate or violate a child of 16 or 17 years he does not, according to sections 15 and 16, commit a crime! The same discordance is found between sections 15 and 16 on the one hand and sections 19 and 20 which deal with the using of children for child pornography and displaying pornography or child pornography to children (that is persons under the age of eighteen years).
It is unclear from the NPA submission whether it is arguing that the newly adopted provisions are in fact unconstitutional and if so which sections of the Bill of Rights are being breached, whether the Constitutional Court should declare these provisions invalid, and whether the Court should interfere with the right of the democratically elected Parliament to pass legislation on issues of public policy.
The NPA submission reads more like a document written by Doctors for Life or some other group who is arguing from a specific, highly moralistic and impractical, point of view. It equates all sex by individuals younger that 18 with child abuse, which would come as a rather big surprise to all the young people of South Africa who have had (and will continue to have) consensual sex before the age of 18.
It also seems to argue that consensual sex between individuals younger than 18 is no different from child pornography and fails to address the possible policy reasons for outlawing the manufacture and consumption of child pornography, while legalising consensual sexual intercourse between (perhaps even loving and caring) youngsters who happen to be younger that 18.
Surely the reason why Parliament made this distinction was that many young people do have sex with one another and – gasp! – even enjoy it. A law that criminalises all sex between (or with) anyone between 16 and 18 would be impossible to implement. The police would be very busy indeed if they had to run after such couples. At the same time there might well be good policy reasons to protect youngsters from the clutches of the porn industry.
It will be interesting to see how the Constitutional Court deals with this matter. I for one would be rather surprised if they take the NPA arguments – if one can call it that – very seriously.BACK TO TOP