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17 January 2013
On 15 January 2013 the Pretoria High Court declared sections 15 and 16 of the Sexual Offences Act unconstitutional. This is a great victory for the constitutional rights of children, especially girl children. The Women’s Legal Center acted as a friend of the Court, together with the Tshwaranang Legal Advocacy Centre (TLAC), in order to emphasise to the court the discriminatory and disproportionate effects of these sections on girls between the ages of 12 and 15 in South Africa.

Before the judgment, sections 15 and 16 of the Sexual Offences Act made it a crime for children between the ages of 12 and 15 to engage in any and all conduct of a consensual, sexual nature – including hand-holding, cuddling, kissing, and other behaviors part of a normal adolescent sexual development. The court agreed that apart from creating strange anomalies, when read with other laws relating to children, these sections infringe a range of children’s constitutional rights, including equality, and are not rationally connected to the purpose the state claims it sought to achieve with these sections. The court found that the state had failed to provide any evidence that criminalising normal, consensual teenage sexual behavior would deter or regulate unhealthy sexual conduct by teens, or that such criminalisation would provide “protection” to children – a point that was conceded by the state in legal argument. The court found that exposing children to the criminal justice system would only result in trauma and stigmatisation, whereas what is required is open and frank discussion between children and adults about positive sexual behavior.

Sanja Bornman, attorney at the Women’s Legal Centre, says “These provisions were particularly harmful for girl children, as girls can bear a physical marker of sexual intercourse in the form of pregnancy, where boys do not. Girls would thus be ‘easy targets’ for prosecution under these misguided laws. Far from deterring risky sexual behavior, these sections would have promoted it by discouraging girls from reporting rape for fear that they might instead be charged with so-called ‘consensual sexual penetration/violation’.”
Acting Director at TLAC, Nicky Vienings, asserts “Should girls experience a defamatory and negative interaction with the legal system at an early age for an incidence which is deemed ‘unlawful/criminal’, but is in fact part of their natural development in sexual exploration, they would be less likely to report any incidences of sexual or domestic violence that may be perpetrated against them later in their lives. This not only puts them at risk, but also lends itself to girls experiencing deep psychological scarring from the discrimination they would experience from the state and quite possibly from the communities in which they live.”

“The Department of Justice has been reported as saying the judgment has far-reaching implications in the escalating rate of sexual violence among children under the age of 16 years. But this shows a fundamental misunderstanding of the issue. It is irrational to suggest that criminalising children’s normal consensual sexual behaviour will result in a decrease in child rape or sexual assault, which is covered by entirely different sections in the Sexual Offences Act.” concludes Bornman.

Issued by the Women’s Legal Centre.

For more information, contact:
Sanja Bornman (WLC): 083 522 2933
Nicky Vienings (TLAC): 011 403 4267

About the Women’s Legal Centre

The WLC is a non-profit, independently funded law Centre, started by a group of lawyers in Cape Town in 1999, with a vision to achieve equality for women in South Africa. The Centre has identified five strategic focus areas. These are: violence against women; fair access to resources in relationships; access to land/housing; access to fair labour practices; and access to health care (particularly reproductive health care).

The WLC has been at the forefront of legal reform in relation to women’s equality in South Africa since the Constitution came into effect, having won several precedent setting cases in the past.

The WLC is targeting socio-economic rights of women as an important area for advancement by litigation and advocacy, and will challenge the most unenviable forms of indirect discrimination that act to prevent women from achieving real equality.

In order to empower women through knowledge of their rights, the Centre also offers free legal advice to women. Women are assisted or referred to the relevant body, NGO or court for assistance.
About the Tshwaranang Legal Advocacy Centre

The Tshwaranang Legal Advocacy Centre to End Violence Against Women (TLAC) is a non-profit organisation that promotes and defends the rights of women to be free from violence and to have access to appropriate and adequate services. Our key activities include research and policy development, litigation and advocacy, training and public awareness.

The organisation was established in 1996 and in the same year its first Director, Joanne Fedler, became a member of the South African Law Reform Commission’s Project Committee which drafted the 1998 Domestic Violence Act. Since then the organisation has argued before the Constitutional Court and the Supreme Court of Appeal, as well as appeared before a number of parliamentary committees to present its research and law reform proposals. In 2011 Tshwaranang was accredited as a law clinic.

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