As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
The National Prosecuting Authority’s decision to charge with statutory rape all three of the pupils filmed having sex at Jules High School in Johannesburg, apparently to make an “example of them” in order to deal with a “national epidemic” of underage sex at schools, raises some interesting questions.
The decision to charge all three for contravening section 15 of the Sexual Offences Act was taken after the 15-year-old girl, who had claimed that she had been drugged and raped by two boys, aged 14 and 16, on the sports grounds of Jules High School on November 4, allegedly “confessed” that the sex was consensual.
Section 15 of the Act states that:
(1) A person (‘‘A’’) who commits an act of sexual penetration with a child (‘‘B’’) is, despite the consent of B to the commission of such an act, guilty of the offence of having committed an act of consensual sexual penetration with a child. (2) (a) The institution of a prosecution for an offence referred to in subsection (1) must be authorised in writing by the National Director of Public Prosecutions if both A and B were children at the time of the alleged commission of the offence: Provided that, in the event that the National Director of Public Prosecutions authorises the institution of a prosecution, both A and B must be charged with contravening subsection (1). (b) The National Director of Public Prosecutions may not delegate his or her power to decide whether a prosecution in terms of this section should be instituted or not.
For the purpose of section 15 a child is defined as someone older than 12 but younger than 16. This section makes clear that it is a criminal offence for a teenager younger than 16 to have sex with another teenager younger than 16 – even when the sex is consensual. The National Director of Public Prosecution (NDPP) is given a discretion on whether to charge such children with statutory rape or not, presumably to prevent our courts from being flooded with cases of consensual teenage sexual conduct. However, the NDPP does not have a discretion to charge only the boy or boys and not the girl involved in the alleged offence.
Normally the NDPP will not charge the perpetrators in a case like this as the Child Justice Act allows him to “divert” a matter involving a child who is alleged to have committed this offence if: (a) the child acknowledges responsibility for the offence; (b) the child has not been unduly influenced to acknowledge responsibility; (c) there is a prima facie case against the child; (d) the child and, if available, his or her parent, an appropriate adult or a guardian, consent to diversion; and (e) the prosecutor indicates that the matter may be diverted.
Diversion programmes must, where reasonably possible, impart useful skills; include a restorative justice element which aims at healing relationships, including the relationship with the victim; include an element which seeks to ensure that the child understands the impact of his or her behaviour on others, including the victims of the offence, and may include compensation or restitution; be presented in a location reasonably accessible to the child; be structured in a way that they are suitable to be used in a variety of circumstances and for a variety of offences; be structured in a way that their effectiveness can be measured; be promoted and developed with a view to equal application and access throughout the country, bearing in mind the special needs and circumstances of children in rural areas and vulnerable groups; and involve parents, appropriate adults or guardians, if applicable.
The first question that arises is why this matter was not diverted. Was the decision taken for political reasons after the initial outcry that followed the lack of action against the two boys by the prosecuting authority? In any case, once the decision was taken to charge the boys, the NDPP had no choice to also charge the girl. I assume the magistrate will now decide on this and that — unlike the NDPP – the magistrate will apply the Child Justice Act and divert the case.
Second, one might ask whether the criminalisation of consensual sex between children older than 12 but younger than 16 is actually constitutional. Section 12(2) of the Bill of Rights states that: “Everyone has the right to bodily and psychological integrity, which includes the right (a) to make decisions concerning reproduction; (b) to security in and control over their body”. This must be read with section 28(2) of the Bill of Rights which state that: “A child’s best interests are of paramount importance in every matter concerning the child”.
It is clear that section 15 of the Sexual Offences Act limits this right to control one’s own body. The question would be whether the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom. This will hinge on whether there is a valid reason for the limitation and whether this reason is pressing enough to outweigh the considerable limitation on the rights of teenagers to have consensual sex.
Why did the legislature criminalise sex between teenagers? Was it to try and impose a certain narrow moral attitude about teenage sexuality on everyone or was it to protect children? One argument would be that given the special vulnerability of teenagers and the peer pressure they face, it will always be difficult for them to give informed and voluntary consent to sex. It would therefore be necessary to criminalise consensual teenage sex.
Our courts might well accept this argument, although I am far from convinced that this is the real reason for the ban. Surely it is impossible to make broad generalisations like this. Would it not depend on the teenagers involved and would the true nature of the consent not hinge on many factors, including the context within which the sex occurred and the nature of the relationship between the consenting teenagers?
Is it not more likely that because our society is uncomfortable with teenage sexuality the legislature had decided to criminalise teenage sexuality in a vain attempt to curtail it? Personally, it seems to me as if the criminal law is not the right mechanism to deal with teenage sexuality. Teenagers will have sex — whether the law prohibits it or not. By criminalising consensual sex between teenagers, are we not making them more vulnerable instead of less vulnerable by turning all sexually active teenagers into potential criminals?
Should our society not deal with this issue in a more nuanced manner? Surely there are many reasons why teenagers are having sex so young? The absence of strong adult role models, social and economic conditions, the sexualisation of our society by the media, the fact that some teenagers grow up faster than before may all contribute to this. Surely the criminal law is not going to address this? It seems to me that the criminalisation of all teenage sex is profoundly anti-child and does not take into account the best interest of children. I am not sure, however, that the Constitutional Court will see it in the same way and it might well endorse this rather draconian piece of legislation.
If there is indeed an epidemic of teenage sex, the criminal law is not going to deal with it. Given the fact that teenagers will have sex, is it not better to talk more openly about sex and to help teenagers to deal with the possible consequences of having sex. That is why condoms should be freely available in schools and why HIV prevention programmes should be run in our schools to empower teenagers to make sensible decisions around their sexuality. That is also why education on respect for women and the equality of men and women as well as the consequences of sex should be part of the high school curriculum.
Merely criminalising consensual teenage sex, is like putting a plaster on a freshly amputated leg. This law makes no sense to me and seem to have far more to do with the moral scruples of adult law-makers (who wish to hide from the fact that teenagers are having sex) than with the lived reality of teenagers and with their true needs and concerns. The fact that there is now an outcry about the decision to charge the three teenagers, it seems to me, demonstrates that this law is an ass and needs to be rethought.BACK TO TOP