By Avani Singh on 29 April 2013.

This case comes before the Constitutional Court by way of confirmation proceedings in terms of section 172(2) of the Constitution, following the North Gauteng High Court (“NGHC”) per Rabie J having declared sections of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 (“the Act”) to be unconstitutional.

In the NGHC, the applicants challenged the constitutional validity of sections 15 (“Acts of consensual sexual penetration with certain children (statutory rape)”), 16 (“Acts of consensual sexual violation with certain children (statutory sexual assault)”) and 56(2) (dealing with defences in respect of sections 15 and 16 of the Act) (collectively, “the impugned provisions”). The impugned provisions criminalise a wide range of consensual sexual activities involving children aged between 12 and 15 years, including all forms of kissing on the mouth. The applicants did not challenge the impugned provisions insofar as they relate to the sexual conduct of adults; however, to the extent that the impugned provisions criminalise the sexual conduct of children, the applicants argued that they are unconstitutional. This affects the consensual sexual activity of a child aged between 16 and 18 years with a child aged between 12 and 15 years, as well as the consensual sexual activity of two children aged between 12 and 15 years.

Rabie J accepted that the impugned provisions infringe a range of constitutional rights of children, a point which was conceded by the respondents in argument. In particular, Rabie J held that on the evidence before him, it was clear that the impugned provisions may cause harm to children, and constitute an unjustified intrusion of control into the intimate and private sphere of children’s personal relationships in a manner that would cause severe harm to them. As such, he held that the impugned provisions violate section 28(2) of the Constitution. Furthermore, he held that the impugned provisions violate the right to have one’s dignity respected in terms of section 10 of the Constitution, as the impugned provisions stigmatise and degrade children on the basis of their consensual sexual conduct. Rabie J held further that the impugned provisions also violate the right of children to have control over their own body as provided for in section 12(2) of the Constitution, and their right to private and intimate personal relationships as protected by section 14 of the Constitution.

In Rabie J’s view, an analysis of sections 15 and 16 of the Act reveal that these provisions do not properly balance the rights of children with the state’s interest in encouraging responsible sexual behaviour by children, and described the consequences of these provisions as “irrational, overbroad and harmful”. These consequences could include, inter alia, arrest, being required to provide detailed statements about their sexual conduct, being questioned by the police and other authorities about the sexual conduct, and detention in police cells. Rabie J noted that even the diversion process would not entirely protect the rights of the child, and would still be highly traumatic and inappropriate in circumstances where there is no victim and no offender.

With regard to the prosecutorial discretion provided for by the impugned provisions, Rabie J agreed with the applicants that there is no real guidance on how the discretion should be exercised, or what constitutes acceptable adolescent sexual conduct. As such, Rabie J held that, in the absence of legislative or other guidelines to assist the relevant official to decide which cases to prosecute, the discretion conferred could not save the impugned provisions from unconstitutionality.

Lastly, Rabie J held that the impugned provisions constituted a severe limitation on important constitutional rights, are not rationally related to the purpose they seek to achieve, and are overbroad. Furthermore, Rabie J held that there are less restrictive means available to achieve the purpose. According to Rabie J, rather than ameliorate the risks of sexual conduct, the impugned provisions would exacerbate the harm and risks to children, undermine the support structures, and prevent children from seeking help, thereby putting them at further risk.

On the question of remedy, Rabie J agreed with the applicants’ submissions on reading in to ensure that the offences created by the impugned provisions would not apply to children, but would still serve their primary purpose of protecting children from predatory adults. In the result, Rabie J declared sections 15, 16, 56(2)(b) and the definitions of “sexual penetration” and “sexual violation” in section 1 of the Act to be inconsistent with the Constitution, and held that the following underlined portions should be read into the Act:

• Section 15: A person (‘A’) who commits an act of sexual penetration with a child (‘B’) is, despite the consent of B to the commission of such an act, guilty of the offence of having committed an act of sexual penetration with a child, unless at the time of the sexual penetration (i) A is a child; or (ii) A is younger than eighteen years old and B is two years or less younger than A at the time of such acts.
• Section 16: A person (‘A’) who commits an act of sexual violation with a child (‘B’) is, despite the consent of B to the commission of such an act, guilty of the offence of having committed an act of consensual sexual violation with a child, unless at the time of the sexual violation A is a child.

Before the Constitutional Court, the applicants seek an order confirming the NGHC order; in the alternative, the applicants seek the Constitutional Court to uphold their challenge to section 54(1)(a) of the Act (dealing with the reporting of crimes) and sections 50(1)(a)(i) and 50(2)(a)(i) of the Act (dealing with the Register for Sex Offenders) insofar as they apply to adolescents engaging in consensual sexual activities.