"If anyone needs to be criminally charged for South African children having sex at too young an age, it is the adults who have failed the kids and not the children themselves," says Helen Rees, the head of the Reproductive Health and HIV Institute at the University of the Witwatersrand.
Rees was responding to this week's Constitutional Court case in which parts of the Sexual Offences and Related Matters Act are being challenged by the Teddy Bear Clinic and Resources Aimed at the Prevention of Child Abuse and Neglect.
According to the Act, it is illegal for children of 12 and older, but younger than 16, to have consensual penetrative sex, which includes oral sex or penetration with a finger or object, or to French kiss or fondle. Such youngsters can be criminally charged with statutory rape or statutory sexual assault and, if found guilty, be placed in the National Register for Sex Offenders.
The Act also makes it mandatory for anyone, including parents, teachers or nurses, who are aware of a child engaging in sex, to report it to the police or face a possible prison term.
The Act is currently in limbo after the North Gauteng High Court ruled in January that these provisions were unconstitutional, but this "declaration of invalidity" has to be confirmed by the Constitutional Court before the law can be amended.
"We believe that children should not be criminally charged for consensual sexual activities and should not be dealt with in the same manner as sex offenders," says Carina du Toit of the Centre for Child Law at Pretoria University, who is representing the applicants in their case. "The purpose of the case is not to promote sexual activity between children or demand that they have the right to have sex. It is to prevent the harmful consequences of pulling children into the criminal justice system for consensual sex."
In 2011, then National Prosecution Authority head Menzi Simelane used the Sexual Offences Act to authorise the prosecution of at least two groups of children between the ages of 12 and 16 for having consensual sex: six pupils from Mavalani High School in Limpopo and three pupils from Jules High School in Johannesburg. Simelane later withdrew the charges against the Johannesburg pupils and instead compelled them to complete a "diversion programme" designed for children who are sex offenders.
"More harm than good"
According to Teddy Bear Clinic head Shaheda Omar, the programme "did more harm than good".
"They felt labelled, humiliated and embarrassed, as they were placed in the same bag as sex offenders. So much so that it had a drastic influence on their school performance and some of them wanted to change schools," she said. "It eroded their self-esteem."
The state is opposing the case, arguing that the applicants are taking the Sexual Offences Act out of context in that it should be read with other legislation pertaining to children.
The Act, originally designed to deal with adults who sexually abuse children, directly contradicts the Children's Act, which grants youngsters of 12 and older the right to access contraceptives and abortions without their parents' permission.
With regard to condoms, the Act says that "no person may refuse to sell condoms to a child over the age of 12 years; or to provide a child over the age of 12 years with condoms on request where such condoms are provided free of charge".
According to Du Toit, this essentially means that "a 12-year-old who tells a nurse that she's sexually active in order to access contraception could potentially incriminate herself, as the health worker would then be obliged to report the child to the police".
Du Toit said the criminalisation of consensual teenage sex would discourage children from accessing sexual and reproductive health services, as they would fear being reported and it would therefore also affect their right to dignity, privacy and freedom to make decisions about their own bodies.
"It could also lead to a teacher who dislikes a child, or a disgruntled boyfriend or girlfriend wanting to take revenge, reporting someone to the police for sexual activity," she said.
According to the Medical Research Council's 2008 national youth risk behavior survey, 37.5% of high school pupils are sexually active, with 12.6% having had their first sexual encounter before the age of 14 years. "Can you imagine prosecuting more than a third of schoolgoing youngsters? Children having sex at a young age need support, not criminalisation," says Rees.
The vulnerable will pay
Rees says criminalisation would also lead to the most vulnerable adolescents, who are in need of stronger family structures and better schooling, being targeted. "Children from lower socioeconomic classes are at higher risk of having sex, because transactional sex with older men with money is often a way to pay for school books or fees."
According to the government's latest antenatal report, women aged between 15 and 21 are significantly more vulnerable to HIV infection than older women. Medical council figures show that 12.1% of 14-and 15-year-olds and 12.9% of 16-year-olds have given birth to a child.
"This makes it crucial to make all forms of contraceptives, including condoms, as well as sexuality counselling, available at schools without learners having to fear being prosecuted," says Rees. "There is no evidence that suggests that making condoms available at schools hastens the onset of sexual intercourse or increases its frequency."
In October last year, the government launched the integrated school health programme that incorporates sexuality education and access by pupils to contraception. While the health department supports the idea of making contraceptives available at schools, Education Minister Angie Motshekga is more conservative.
In November last year she told the council of provinces: "They [pupils] don't have sex at school, they have sex at home. There's something wrong indeed that it now becomes my problem. We don't provide beds, we provide pens and books."
According to deputy health director-general Yogan Pillay, the health department has introduced mobile school clinics, which, along with other health services, will provide "sexual and reproductive counselling, which includes making available contraception".
"School governing bodies would have to decide whether a clinic does that on school grounds or outside of it," he said.
Du Toit said the Constitutional Court would have to rule on whether it agreed with the high court's ruling or supported the Sexual Offences Act in its current form. The ruling is expected later this year.
Criminalisation no deterrent, experts warn
There is not only opposition to the criminalisation of consensual teenage sex in South Africa, there are also arguments against the criminalisation of HIV transmission.
Some places, such as parts of the United States, have enacted laws to criminalise HIV transmission or exposure. Others, such as South Africa and England, charge those accused under existing laws with crimes such as attempted murder or grievous bodily harm.
"If people risk going to jail for infecting someone with HIV, they'll end up not getting themselves tested for the virus," Section27 attorney Umunyana Rugege says. "People would prefer not to know their status, so that they cannot be prosecuted. The consequence would be that fewer people would know their HIV status, people with HIV would become even more stigmatised and many would not seek treatment," she says.
"As in the case of addressing teenage sex, a better solution would be to increase access to contraception, sexual education and antenatal services, because the criminalisation of social behaviour generally leads to people not accessing the health services that they need."
Rugege says the criminalisation of social behaviour, such as sex, is generally not a strong enough deterrent to prevent a crime.
"People will still commit a crime, even though they know there will be a sentence. Given that the criminal prosecution system has failed people in the past through weak investigation that leads to ineffective prosecution, addressing the issue through social intervention is considerably more effective."