Criminalising consensual sex between young people breaches their rights to privacy and dignity
Teddy Bear Clinic for Abused Children v Minister for Justice and Constitutional Development [2013] ZACC 35 (3 October 2013)
Summary
The Constitutional Court of South Africa has found that laws criminalising consensual sex between young people are unconstitutional. The Court held the laws unjustifiably violate the dignity and privacy of young people and are not in the best interests of the child.
Facts
Criminal Law
The criminal law in South Africa makes it a criminal offence for a young person (between 12 and 16 years) to engage in a consensual sexual act with another young person. The relevant laws are sections 15 and 16 of the Criminal Law (Sexual Offences and Related Matters) Act. Section 15 makes it an offence for a person to commit a consensual act of sexual penetration with a child (Statutory Rape). Section 16 makes it an offence for a person to commit a consensual act of sexual violation with a child (Statutory Sexual Violation). In both cases, if the perpetrator is also a child, then the DPP has a discretion not to prosecute. However, if the DPP does prosecute then both persons involved in the sexual act must be prosecuted.
Sexual penetration is defined broadly to include oral sex and genital or anal penetration with any body part or object. Sexual Violation is also defined broadly and includes, but is not limited to, kissing on the mouth; touching genitals or breasts; kissing any part of a person which could cause sexual arousal or stimulation or be sexually aroused or stimulated; and masturbation of one person by another person.
A person is not guilty of an act of sexual violation if the age difference between the two people is less than two years.
Children convicted would be registered on a sex offender register, which limits their employment prospects later in life.
Human Rights Laws
The applicants argued that criminalising such conduct is inconsistent with the fundamental rights enshrined in the Constitution, being:
1. Right to dignity (section 10);
2. Right to privacy (section 14); and
3. Best interests of the child are of paramount importance (section 28(2)).
According to section 36 of the Constitution rights may be limited, but any limitation must be reasonable and justifiable in an open and democratic society.
The applicants relied on an expert report of a child psychiatrist, which provided information on the sexual development of children and the potential impact of criminalising consensual sexual acts between young people. The report noted that the majority of adolescents between 12 and 16 engage in a variety of sexual behaviours; sexual experiences during adolescence are not only developmentally significant they are also developmentally normative. The expert report noted that criminal laws are likely to increase adolescents’ risk for negative experiences and outcomes by silencing and isolating adolescents, which makes unhealthy behaviour and poor developmental outcomes more likely.
The respondents did not provide any evidence of their own, or question the evidence provided. Rather, the respondents argued that, if the court found that fundamental rights were limited, any limitations to those rights are intended to target the risks associated with particular sexual conduct.
Decision
The Court found that criminalising consensual sexual acts limited young people’s rights to dignity and privacy and is not in their best interests.
Dignity
The Court appears to have accepted the expert report in totality and consequently held that it was beyond doubt that the criminalisation of consensual sex is a form of stigmatisation that is degrading and invasive. Even if such provisions are rarely enforced “their symbolic impact has a severe effect on the social lives and dignity of those targeted”.
The Court rejected the contention that it is social mores rather than criminalisation that stigmatises adolescents who are prosecuted under the Act. The Court pointed to the shame and stigmatisation that clearly would result from being arrested and prosecuted in public, before family and peers. This stigma is exacerbated by the fact that the person is listed on the Register.
Privacy
The Court noted that privacy includes family life, sexual preference and home environment. As the Act in effect prohibits consensual intimate relationships it intrudes into the core of adolescents’ privacy.
Best interests of the child
The Court also held that the laws were against the best interests of the child. In reaching this conclusion the Court relied heavily on the expert report which stated that criminalisation:
a) undermines support structures, preventing adolescents from seeking help, and potentially driving adolescent sexual behaviour underground; and
b) creates an atmosphere where adolescents cannot freely talk about sex with parents and counsellors.
In addition the Court noted that:
c) the criminalisation could lead to imprisonment or diversionary programs, both of which bring adolescents into increased interaction with state institutions for engaging in developmentally normative conduct;
d) even though the DPP has a discretion not to prosecute, this discretion cannot save otherwise unconstitutional provisions; and
e) the harm created by the provisions is amplified by the irrationality of the mandatory prosecution of both adolescents given that the reason for the laws is to protect the more vulnerable of the two persons, generally the younger child. To prosecute the younger child as well is therefore irrational.
The Court accepted that the purpose of discouraging adolescents from prematurely engaging in consensual conduct that may harm their development and may also increase the likelihood of risks associated with sex is a legitimate and important aim. However, the respondents had failed to show that the Act could be expected to control such risks, while the applicants had shown that the criminalisation of consensual sex actually increases the likelihood of adolescents participating in unsafe sexual behaviour. Victims of non-consensual sexual acts that began as consensual acts may also be discouraged from reporting crimes for fear of being investigated and prosecuted for consensual violations.
Due to the lack of a rational or proven link between the provisions and their purpose, the provisions cannot be considered either reasonable or proportionate. The Court accepted the expert evidence that there are other measures that encourage adolescents to engage in healthy and responsible sexual practices, such as comprehensive sex education programs in schools.
Parliament was given 18 months to remedy the defects in the Act. The Court declared a moratorium on all investigations into, arrests of and criminal ancilliary proceedings against adolescents under the relevant sections of the Act. Any existing convictions should be expunged and names should be removed from the Register.
Children and rights
There is often a tension between the best interests of the child and the rights of the child. In this case, the Court outlined the way in which children’s rights should generally be approached. The starting point, according to the Court, is the premise that children enjoy each fundamental right that is granted to “everyone” as individual bearers of human rights. If these rights have been limited then it falls to the Court to determine whether the limitation is justified. It is at this point that the Court may consider whether there are legitimate reasons for limiting a child’s fundamental rights due to his or her stage of development. As such, the fact that the individual is a child is not a consideration when looking at the content of the right, but rather it should only be considered when determining whether a limitation of a right is justified.
Commentary
Laws criminalising sex with young people are present in most countries around the world. They are often enacted in the belief that young people should be protected from sexual acts until a certain age and that it is in their best interests that such acts be criminalised. Interestingly, in this case, it was child rights activists and an organisation that looks after abused children that challenged the laws. They were able to utilise expert evidence to show that, far from protecting young people from having sex “too young”, the laws simply served to criminalise acts that were developmentally normal, leading to stigma, greater risk-taking during sex and a lack of guidance and education regarding safe sex. In the face of such evidence it became impossible for the Minister to defend the legislation.
In Australia, the laws regarding consensual sex between children differ from state to state. In some, but not all, states, it is a defence if the age difference of the consenting parties is less than two years. However, not all states have this defence; in South Australia, people under the age of 16 cannot consent to sex at all. Unlike the South African legislation, in Australia there is very little legislative guidance as to what is a sexual act or an indecent act. It is difficult to say, therefore, whether acts such as kissing, touching or masturbating would be considered a criminal act if occurring between two young people.
The Australian Law Reform Commission undertook a review of criminal laws relating to sex and young people in 2010. However, the only recommendation was to make the age of consent uniform across states. As to what the age should be, the ALRC remained silent. No evidence was considered as to the psychological effect on young people of criminalising their behaviour.
This decision is available online at: http://www.constitutionalcourt.org.za/site/Teddy.htm
Emily Christie a solicitor at DLA Piper on secondment to the Human Rights Law Centre