This week, the Portfolio Committee on Justice and Correctional Services invited the public to weigh in on the proposed amendments to the Sexual Offences and Related Matters Act. One of the Act’s biggest points of contention has been the proposed amendment to decriminalise consensual sex between adolescents (anyone aged 12 to 15). Under current legislation, if adolescents have consensual sex, they can be charged with statutory rape. The views this has brought about have been as jarring as they are varied. Some have asked whether adolescents have the cognitive capacity to fully understand the implications of sex, while others are of the opposing view that sex is a natural part of adolescent development and should not be legislated by parliament.
We attended one of the public hearings—when various civil society groups presented their recommendations to parliament—to give you highlights of all the action. Here’s what happened:
Criminalising consensual adolescent sex is disempowering
First up was The Teddy Bear Clinic For Abused Children—an NGO that provides rehabilitation, counseling and other services for abused children. The Teddy Bear Clinic, which was represented by its director Shaheda Omar, support the proposed amendments, stating that criminalising consensual sex between teenagers not only infringes on their constitutional rights but also limits the ability of parents to engage with them about sex.
“Criminalisation of sexual acts, especially coupled with the duty to report, limits the ability of both parents and support organizations to educate, empower, guide, and support adolescents in their sexual development,” Omar told parliament. “This they cannot do, because they cannot be seen to promote behavior that is illegal [as] they are obliged to report any form of intimate contact to the police or relevant authorities,” she added.
Omar further argued that the current legislation was not only harmful to the sexual development of adolescents but was also decidedly biased against girl children and would make them “easy targets” for state prosecution.
“These provisions are particularly harmful for girl children as girls can bear a physical marker of sexual intercourse in the form of pregnancy, whereas boys do not. Therefore, girls would be easy targets for prosecution under these misguided laws. Far from deterring risky sexual behavior, this also discouraged girls from reporting rape for fear of being charged with so-called ‘consensual sexual penetration/violation’,” she concluded.
Age for consensual adolescent sex should be raised to 13
The Justice Alliance of South Africa (JASA)—represented by their director, John Smyth (a constitutional lawyer)—also tabled their proposed amendments to the Bill. JASA, which describes itself as “a coalition of corporations, individuals and churches committed to upholding… the highest moral standards in South African society” proposed that, while adolescents shouldn’t be prosecuted for consensual sex, there should be some sort of “deterrent to assist in controlling the ‘material risks’ of children having children”.
“Some children want boundaries,” Smyth began. “The gist of our submission is that we need to add something in the Bill which provides a deterrent so children who want boundaries know where those boundaries are,” he added. One of their proposed amendments (they suggested four) was that the age of consensual penetrative adolescent sex ” be raised to 13 years for both boys and girls”. They further recommended that parents should be compelled by law to report any sexual activity between anyone under 14:
A parent or guardian who knowingly permits a child under 14 years of age to engage in penetrative sexual intercourse shall be guilty of an offense, their submission read.
Adolescent sex is immoral
Finally, it was the turn of the Foundation Nation Restoration (FNR)—a Christian civil society group concerned with “empowering communities in bringing spiritual, social and economic restoration to the Foundation Nation and the nations of the land”—to present their recommendations to the committee. They were of the opinion that adolescent sex is both morally repugnant and, according to Christian doctrine, allowing the decriminalisation of adolescent sex would bring “[spiritual] bondage to the land”.
“Regarding this Act; adolescent sex is wrong—from a moral perspective and from a Scriptural perspective,” said FNR, through their representative Hilary Solomon. “As we look at this Amendment—it stands in opposition to the stewardship principle—it will in no way be a blessing to the land and will not bring forth fruit to benefit the nation. Not now nor in the future,” Solomon added.
FNR would later go on to state that the age of sexual consent should, in fact, be increased to 18 to match the age of other signifiers of adulthood:
FNR does not support this Amendment, and recommends that the the age [of consent] be consistent to that of laws pertaining to voting, signing of contracts, purchasing of alcohol and obtaining of driver’s license, the Foundation Nation concluded.
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