A LAW criminalising consensual sex between teenagers harmed the very children it was seeking to protect, the Constitutional Court heard on Thursday.
The Criminal Law (Sexual Offences and Related Matters) Amendment Act has been widely condemned as absurd and unenforceable. It makes it a criminal offence for children between the ages of 12 and 16 years to have sex, even when they have both consented. It also makes it a crime for teenagers of certain ages to kiss, and even to cuddle with all their clothes on.
The North Gauteng High Court found it unconstitutional, saying the criminal prohibitions were so broad they covered behaviour that "virtually every normal adolescent participates in at some stage or another".
At the Constitutional Court on Thursday, Steven Budlender, counsel for the Teddy Bear Clinic for Abused Children, and for Resources Aimed at the Prevention of Child Abuse and Neglect — the organisations that brought the case to court — first emphasised what the case was not about: it was not about sexual contact between adults and children (exploitation and statutory rape) and it was not about nonconsensual sexual contact (rape and sexual assault), all of which would remain crimes, he said.
The case was about consensual sexual contact between children aged 12 to 16, he said. While the government said the act was to protect children, it had the opposite effect; it harmed them because it exposed them to the trauma of the criminal justice system and discouraged them from seeking advice and healthcare.
However, counsel for the justice minister and the national director of public prosecutions, Vincent Maleka SC, said that sex, even between teenagers of the same age, still involved risks, such as contracting HIV and other sexually transmitted diseases, as well as teen pregnancies.
The act — meant to protect children from these risks — thus served a "fundamental, legitimate government purpose", he said.
But Chief Justice Mogoeng Mogoeng said that there were "so many ways to empower parents to raise their children properly" that were less restrictive, such as education campaigns.
"I don’t know why children should face the police, social workers and prosecutors," Justice Mogoeng said.
Judgment was reserved.