Centre for Child Law Blog by Svetlana Gitman, 16 March 2011

On Wednesday, March 16, we visited The Centre for Child Law at the University of Pretoria. The representative from the centre told us about the most recent cases the centre has been involved with. Recently, the Constitutional Court decided in favor of the Centre for Child Law and held that minimum sentencing requirements did not apply to children age 16 and 17. The Centre for Child Law believes that a minimum sentence for children under 18 is unconstitutional because section 28 of the Constitution implies that imprisonment of children should be the last resort. The minimum sentencing requirement for children age 16 and 17 would make it that a prison sentence was mandatory, and therefore, not the last resort.

The Centre for Child Law is currently working to repeal provision 15 and 16 of the Sexual Offenses Act 32 of 2007. This act criminalizes consensual sexual relations between children age 12-16. According to these provisions, if two children age 12-16 have sex, they could both be prosecuted for statutory rape. Moreover, this act states that consensual acts such as kissing, hand holding, or petting is also a criminal violation.

I think this law is problematic in multiple ways. First of all, it is mandatory for anyone aware of sexual relations between children mandatory reporters. In a country where HIV/AIDS is an enormous problem, this will put children off from using contraception in fear that they will be reported to the police. When we went to Freedom Square in Soweto, we saw a non-profit organization doing outreach to the community by encouraging people to know their HIV status. I saw firsthand how young people walked by the table and paid no attention to the message. One of the organizers actually screamed after them that they should pay attention and know their status! This law will make the young population even more resistant to knowing their status. The young population is the future of South Africa and I think teaching teenagers about safe sex, instead of abstinence, is a more realistic approach to reducing the HIV/AIDS rate as well protecting children.

Second, I think this law is contrary to section 28 of the Constitution, which protects children from the penal system. This law is essentially criminalizing normal behavior between children. It would be naive to ignore that children are having sex. Furthermore, punishing them criminally, instead of educating them, is not the answer to curbing the rate of HIV/AIDS, STI’s, and unplanned pregnancies. Also, putting children through the stress of investigation and prosecution will traumatize them more than any possible negative effects of having consensual sex at a young age.

I was really impressed that every person we met with on this trip referenced the Children’s Act in some form; each person we met with emphasized that South Africa is very committed to protecting the welfare of children and therefore put forth a lot of effort into creating a comprehensive Children’s Act. However, I think these two provisions of the Sexual Offenses Act have the potential to hurt children rather than protect them. More importantly, provision 15 and 16 are in conflict with the Children’s Act. The Children’s Act allows children to consent to abortions, serious surgery and contraception prior to turning 16. If provision 15 criminalizes consensual sexual acts between children age 12-16, then in fact children do not have a right to obtain contraception since having sexual intercourse is illegal.

One final thought: a few opening remarks made by representative from the Centre for Child Law really stood out in my mind. The representative said that while certain special groups were winning more rights, those rights were not trickling down to everyone. For example, gay marriages are legal in South Africa, however in reality only white, wealthy people are benefiting from this newly gained right because traditional black communities do not accept gay marriage. In fact, corrective rape of lesbian women is a gigantic problem in South Africa. This made me think about whether the provision 15 and 16 of the Sexual Offenses Act will protect children of all different socio-economic backgrounds or weather these provisions will only affect specific groups. I think provision 15 and 16 of the Sexual Offenses Act will actually only reach the lower socio-economic communities, and they will affect children in those communities in a negative way. When a girl 12-16 year old becomes pregnant in the township, she can potentially be prosecuted because there are fewer resources available to her. However, girls of wealthier backgrounds are more likely to be able to take care of their pregnancies “privately” and avoid prosecution. I hope the court finds provision 15 and 16 unconstitutional.

 

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