Series of three consecutive articles written for and first published by Caxton Community Newspapers in July 2015
12- to 15-year-olds can now have sex
According to a Government Gazette Notice released on 7 July 2015, Parliament has amended the law so that the full range of sexual activities, including penetrative intercourse between two children aged 12 to 15, or between a child under 16 and another child over 16 where the age difference is less than two years, is no longer a crime.
These changes to the Criminal Law (Sexual Offences and Related Matters) Amendment Bill were adopted by the National Assembly in June.
Previously, provisions in the Sexual Offences Act criminalised children who engaged in any consensual sexual activities, including French kissing. As it stood, any individual such as a parent, health worker, or teacher, who had knowledge of any consensual sexual activity between children aged 12 to 16, was required by law to report the children or face prosecution. If found guilty, the children would have their names included on the National Sex Offenders Register.
“Amendments to the bill are not about promoting or encouraging sexual activity between children,” explained Zane Dangor, special advisor to the Minister of Social Development RSA. He was part of a panel discussion on ‘Consent, Rights, and the Regulation of Childhood and Adolescent Sexuality in South Africa’, which was held at Wits University in Braamfontein on 15 July.
“Amendments to the bill are about the Constitutional Court’s decision, that the so-called ‘kissing law’ infringed on the constitutional rights of children,” he said. “Criminalisation of sexual activities between consenting children is considered an unjustified intrusion of control into the private sphere of children’s personal relationships. Children have the right to seek pleasure. Children also have the right to dignity, privacy, freedom, and access to health services.”
“It must be stressed, however, that amendments to the bill do not lower the age of consent,” he continued. “The age of consent in South Africa remains 16. If a child under the age of 16 consents to penetrative intercourse with another child over the age of 16 where the age difference is more than two years, both parties are guilty of a section 16 offence.”
The State does have discretion on whether or not to prosecute cases of statutory rape and, in most cases, will exercise restraint. It was found that rather than conviction and sentencing, diversion usually occurred, which resulted in the child carrying the burden of a criminal record. The frequent exposure of the child to the criminal justice system through police and courts during this whole process was also deemed traumatic and harmful to the child’s development.
Demystifying the reasoning behind the decriminalisation of sex between 12- to 15-year-olds
On 15 July, the Wits Institute for Social and Economic Research (WISER) hosted a seminar on ‘Consent, Rights, and the Regulation of Childhood and Adolescent Sexuality in South Africa’, in the Richard Ward Building on the East Campus.
Chaired by WISER’s Lisa Vetten, the panel examined recent amendments to the law decriminalising consensual sex between two children aged 12 to 15, or between a child under 16 and another child over 16 where the age difference is less than two years.
Above: Lisa Vetten (WISER) chairs a panel discussion on ‘Consent, Rights, and the Regulation of Childhood and Adolescent Sexuality in South Africa’. Image: Paula Gruben.
Sarah Duff from WISER spoke on the history of children’s sexual socialisation. “In the past, there were sanctions against pregnancy out of wedlock,” she said. “Young, unmarried mothers were stigmatised, ostracised, and used as scapegoats. Now the anxiety and blame among moralists has shifted, from unmarried mothers to pregnant teens.”
Above: Sarah Duff (WISER) explains that the term ‘teenager’ was only coined in the 1920s, and that definitions of childhood, adolescence, and sexuality have changed over time. Image: Paula Gruben.
“The thought of children being sexual agents makes adults uncomfortable, so we try to wish it away,” said Deevia Bhana from the University of KwaZulu-Natal, speaking on the dynamics of children’s gendered and sexual culture. “But when it comes to sex, we need to acknowledge that children know more than we (like to) think they know. There is this assumption of ‘childhood innocence’, and the belief that children need punitive parenting in order to raise morally continent adults. But we need to contextualise our sexual moral panic.”
“The same way we cannot demonise members of the LGBTQIA (lesbian, gay, bisexual, transgender, questioning, intersex, and allies) community simply because they present with ‘non-normative’ sexualities, we cannot criminalise children for being sexual agents,” she added. “This results in children not admitting to their own sexual agency, because they fear being perceived as ‘contaminated’.”
Above: Deevia Bhana (University of KZN) says that the same way we cannot demonise members of the LGBTQIA community because they present with ‘non-normative’ sexualities, we cannot criminalise children for being sexual agents. Image: Paula Gruben.
Nolwazi Mkwanazi from the Wits Anthropology Department spoke on the politics of reproduction and early child bearing. “Although the rate of teen pregnancies in SA is high, it has not increased,” she said. “It is just more visible in schools now, because the girls cannot be expelled, as was common practice in the past. That said, the school environment for pregnant girls is often a hostile one. One third of these girls do not complete their education.”
“The environment at many family planning and abortion clinics can also be a hostile one,” she added. “Nurses often chastise young girls for seeking contraception and termination services, with many nurses refusing to perform abortions on the grounds of conscientious objection, and fear of being stigmatised in the community. This leads to the girls’ late announcements of their pregnancies – beyond the time-frame in which they can request a legal termination, which has resulted in an increasing number of girls seeking out the services of backstreet practitioners. Fifty per cent of abortions among 13- to 19-year-olds are performed illegally, because the girls know they will not be turned away, and that it will remain confidential.”
Above: Nolwazi Mkwanazi (Wits Anthropology Department) explains common problems faced by young girls when trying to access contraceptive or termination services at clinics. Image: Paula Gruben.
Speaking on legislating children’s sexual practices, Zane Dangor, special advisor to the Minister of Social Development RSA, explained that the widely held belief of teenage girls having babies to access child support grants is a fallacy. “There is no supporting evidence; most women who access these grants are actually in their thirties,” he said.
“The Department is busy working on a compulsory Comprehensive Sexuality Education (CSE) programme, to be incorporated into the Life Orientation (LO) curriculum at schools,” he added. “The cornerstone of our strategy is to address the issue of responsible childhood sexual activity. The onus is on adults to educate children. We need to inculcate their rights and responsibilities as sexually active citizens. Denial of childhood sexuality and failure of sexual socialisation is at the root of children fearing opening up to adults, and not seeking help or advice from the appropriate sources. But we cannot do this alone. Youth educators, health practitioners, parents and caregivers all need to be more accessible and accountable.”
Above: Zane Dangor (Department of Social Development) explains the difference between puberty and adolescence – the former being a process of physical maturation, the latter being a stage of psychological maturation. Although both typically occur in the teenage years (13–19), they can begin earlier or end later. Image: Paula Gruben.
Crisis pregnancy options – know your rights
The National Adoption Coalition of South Africa (NACSA) launched the ‘Choose to Care’ crisis pregnancy awareness campaign in June 2015, to offer support and guidance to teenage girls and women facing an unplanned pregnancy.
“Our aim is to help women and girls explore all their options and receive the best professional advice in order to make wise choices for themselves and their unborn babies,” said Dee Blackie, a strategic business and brand consultant, and child protection activist who has worked extensively in social development.
“Prior to a recent amendment to the Sexual Offenders Act decriminalising consensual sex between 12- to 15-year-olds, the Act was used as a punitive tool by some authorities to demonise and punish teenage girls for falling pregnant, placing the blame solely on their shoulders,” she explained. “But a recent survey on teen pregnancies found that one in three of these girls reported their first act of intercourse as being ‘non-consensual’. So, given the high levels of sexual abuse, rape, and coercion of girls in South Africa, the amendment has been well considered.”
The problem, Blackie believes, now lies with the fact that a 12-year-old girl can legally have consensual sex, fall pregnant, and request a termination if she so wishes. But, should this 12-year-old choose to carry the baby to term, she can only sign consent to the adoption of that child when she, the mother, turns 18. Until then, she needs her own parents’ consent, and many teenage girls don’t want their parents to even know about their pregnancies, let alone having to ask their permission to relinquish the baby.
“There needs to be a change to legislation allowing 12-year-olds the same option to adoption as they have to abortion,” said Blackie.
In South Africa, termination of pregnancy (TOP) up to 20 weeks gestation is every woman’s legal right, regardless of her age.
Marie Stopes South Africa is the country’s largest non-profit provider of reproductive healthcare services, and currently provides safe, legal abortions at 14 centres across seven provinces. Their work is strictly governed by the Choice on Termination of Pregnancy Act.
“Challenges of access and stigma are the two main drivers of young girls seeking out unsafe, backstreet abortions,” said Andrea Thompson, advocacy and engagement manager for Marie Stopes SA. “Here we are passionately pro-choice. If the girl seeking TOP services is young, we do advise her to talk to a trusted adult, and ask someone to accompany her to the centre for her appointment. But this is not required. A girl should never be denied an abortion because of her age.”
“Although designated providers in the public sector can refuse to provide TOP services on the grounds of conscientious objection, they do have a legal and an ethical right to refer a girl to a facility where she can have the procedure done,” she concluded.