Should sex between children under 16 be unlawful?

Should sex between children under 16 be unlawful?
 Photo by Patrick Coleman
High school students attend a DramAidE forum theatre performance at a high school in KwaZulu- Natal. Photo by Patrick Coleman, courtesy of Photoshare.

Criticism of a high court judgment decriminalising sex between children aged 12 to 16 is misplaced

Adolescence is a biological fact; not one of us escapes it on the way to adulthood. And since it is largely defined as the time when our sexuality awakens and we come to terms with it, shouldn’t we be making more of an effort to help children understand their sexuality – especially now that South Africa has decriminalised adolescent sexual activity?

In a judgment handed down in January 2013 the North Gauteng High Court found aspects of the Criminal Law Sexual Offences and Related Matters Amendment Act to be unconstitutional. It found that this law, which criminalised consensual sexual activity between children from the ages of 12 to 16, violated their rights. Criminalisation of natural sexual behaviour is often a barrier that prevents people from  accesing health care services, particularly when it comes to HIV. On 30 May the Constitutional Court will hear argument about whether the High Court’s judgment was correct. Surprisingly, the government is opposing the January judgment.

In the public furore that followed the ruling, assorted moral tyrants, punitive parents, pastors and priests, plus a variety of self-appointed guardians of children’s sexuality, joined the debate to lambast the judgment in the interests of protecting morals and preventing what they described as ‘the problem’ of sex. Objectivity in the debate was not aided by irresponsible sensationalism in the media, where some headlines screamed “Kids can Bonk” and “Green Light for Child Sex”.

Expert evidence

Many commentators failed to acknowledge that the court judgment does not encourage or ‘allow’ sex, but merely decriminalises it. It is even more unlikely that critics of the judgment were aware of the intricate expert evidence the court had considered in reaching its decision, or the arguments brought by responsible children’s rights organisations as to why the Act was causing vulnerability and harm.

But before we go there, let’s start at the beginning.

Puberty is a part of human biology. Nobody escapes it. It is defined in the dictionary as the period of a person’s sexual awakening, the period in which their body develops to allow reproduction. But puberty is not just a biological process that ripens the body. It is an emotional and mental process, too. It is the time when children begin to feel sexual desires and, naturally, to act on them. How many honest readers, I wonder, do not still recall the intensity of their first adolescent fumblings, encounters with sex and first love?

[box]Teenage pregnancy does not occur because there is too much information or encouragement of sex. It occurs because young people are not being informed and advised about sex and love in a sensible, non-judgmental way.[/box]

Legal marker

Puberty is also a legal marker recognised in almost every jurisdiction in the world. In South African law puberty dates from the age of 12 for girls and 14 for boys. Theoretically it is the point at which a child may get married, albeit at this early age only with the permission of the Minister of Justice and Constitutional Development.

At this age, according to the Children’s Act, boys and girls over 12 may request HIV testing, without parental knowledge if they choose. They may also access condoms.

However, the effect of the Sexual Offences Act was to try to prohibit puberty and threaten to punish it. A law prohibiting normal human biology! Could anything be more absurd? It is as impossible and unworkable as the apartheid-era Immorality Act.

But in addition to attempting the impossible, the Act had a number of seriously negative consequences for children. Notably, it required that health workers report child ‘offenders’ to the police. This placed health workers in the invidious position of being unable to assist the HIV testing and counselling of teenagers, or provide them with advice on sex and sexuality, without reporting them to the police – or breaking the law if they did not.

Further, if teenagers knew that they might be reported to the police for seeking HIV testing, counselling or condoms, then it was highly unlikely that they would access essential health services – increasing their risk of pregnancy or HIV.

The argument made by some moralising critics is that if sex is allowed amongst adolescents we will have an orgy, a free-for-all, and the state will fail in its duty of moral protection.

They are right in one respect: there is a crisis around sex among young South Africans.

In 2009 there were 45,276 pregnancies recorded in our schools, including 109 of girls in grade 3 (i.e. as young as eight years old) and 11,116 in grade 10 (about 16 years old). The incidence of HIV amongst girls under 18 is six times as high as for boys of the same age. And, as reported by an official of the Gauteng Health Department last year, there is extensive evidence of an increase in forms of pornography and sexual abuse amongst teenagers.

But the moralising critics are wrong in how they understand this, because silence and suppression are precisely the ingredients that have created the crisis. The existing law clearly has not stopped sex. It has just encouraged denial – and by doing so created a space for adolescent confusion and a variety of sexual abusers.

Teenage pregnancy, clearly an expression of teenage sexuality, does not occur because there is too much information or encouragement of sex. It occurs because young people are not being informed and advised about sex and love in a sensible and non-judgmental way.

For example, in a discussion SECTION27 held with Barbara Creecy, the MEC for Basic Education in Gauteng, she pointed out that whilst the government makes condoms widely available to assist our fight against HIV we don’t put similar effort into helping children to understand the emotions and feelings that drive sexuality. We don’t help adolescents to distinguish abuse from love; consent from exploitation; rape from sex. It is a good idea to encourage young people to delay the first time they have sexual intercourse or to take steps to avoid unwanted pregnancy, but we cannot do this by silence, moral battery or harking back to a world that never existed.

The way to address the crisis our country faces around sex, teenage pregnancy, and sexually transmitted diseases including HIV is to find responsible ways to talk about sex, not to try to suppress it. Knee-jerk moralising critics must move aside. To talk openly and responsibly about sex in our homes and schools is not to encourage it, but to allow adolescents the information and space they need to make their own decisions, understand what is right and wrong, and prepare to be self-respecting and respectful adults.

By Mark Heywood