Criminal Law (Sexual Offences and Related Matters) Amendment Act Amendment Bill: public hearings Day 4

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Justice and Correctional Services

11 March 2015
Chairperson: Ms M Pilane-Majake (ANC)
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Meeting Summary

The core of the submissions is as follows:

This submission supported the decriminalisation of consensual sexual activity between adolescents, because it has not only reduced these people’s access to education about healthy sexual choices and clinical reproductive health services, but also has proven to be an ineffective measure against the risks associated with sexual behaviour such as HIV and teenage pregnancy. Further, exposure to the criminal justice system produced negative results for the adolescents themselves which was not in their best interests. It therefore recommended encouraging the caregivers and educators to create a safe space for the discussion of sex with children, to foster better choices about sex in their futures.

On the placing of child sex offender names in the National Register for Sex Offenders, the submission argued that such an inclusion would run counter to the ethos of the child justice legislation and international agreements effective in South Africa. It also has been shown to constitute cruel and inhumane punishment, because it imposes a punishment with lifelong consequences contrary to indications that child sex offenders could be prevented from reoffending with appropriate rehabilitative interventions.

National Association of Child Care Workers
Here the submission, in support of the decriminalisation of consensual sexual activity between adolescents, focused on alerting the Committee to the experiences of child care workers on how best to guide children’s sexual behaviours. It was stated that only through the building of trusting relationships between children and adult caregivers that the space is opened for frank discussion which is necessary to allow for adults to be able to respond to children’s concerns about sex and guide them in making healthy choices. It was submitted that decriminalisation would open the space for such work to be done.

Children’s Institute
The bulk of this submission dealt with the appropriate role for the state to play in regulating adolescent sexual behaviour as informed by international law, specifically Article V of the UN Convention on the Rights of the Child. This Article acknowledges that appropriate guidance from care givers, cognisant of a child’s evolving capacity, must be facilitated by the state. Therefore, as there is legislation which deals with extreme cases of sexual behaviour, it would be appropriate to adopt the Bill in its present form, relying on the policies and laws already in place in the area of regulating adolescent sexual behaviour. Further, to deal with the potentially negative public perception it was recommended that section 57 of the Act be amended to explicitly state that the age of consent is 16. It also echoed concerns from other submissions that criminalisation impedes interactions between social service professionals and children engaging in consensual sexual activity and that assessments by suitably qualified professionals ought to inform the decision about placing a child sex offender’s name on the National Sex Offender Register.

Dr Estelle Lawrence
Dr Lawrence, in support of the amendment, put forward an alternative to criminalisation which she felt was harmful to adolescents. The key is multi-focal comprehensive and integrated educational, social and clinical services. These are effective in helping adolescents but they have to be accessible and acceptable to them, meaning that it is necessary that they feel comfortable in making use of the service. She noted that the efficacy of social institutions in dealing with premature sexual activity is evidenced by the dropping in the percentages of adolescent fertility and HIV prevalence. According to the World Bank the adolescent fertility rate, which indicates the number of births per 1000 women aged 15 to 19, dropped from 54 in 2010 to 51 in 2012. Secondly, in the latest National HIV Prevalence, Incidence and Behaviours Survey 2012, the overall HIV prevalence in those aged 15 to 24 has dropped from 8.4% in 2008 to 7.1% in 2012.

Molo Songololo
This submission consisted of the viewpoints of three teenagers who presented these to the Committee. The three had participated in Molo Songololo’s children’s participation process held at various community forums in Atlantis, Delft and Beaufort West.

The children’s opinions were all against the idea of criminalising consensual sex between adolescents. For several reasons including that developing sexual feelings is part of a natural developmental process, often children are unaware that their behaviour is in fact criminal and that criminalising the behaviour has disproportionate consequences for the child.

The collective views of the communities were also against criminalisation, for similar reasons. Additionally the communities were aware of children’s evolving capacity, meaning that there was potential for a child who was under 16 to in fact be more mature and better prepared for sex than a 17 year old.

South African Human Rights Commission
The Commission as a constitutional body supported the decisions of the Constitutional Court. The decriminalisation was supported from a rights based point of view as protecting children’s rights to dignity, privacy and to have their best interests protected.

A large part of the submission dealt with the Register. It was submitted that aside from the questionable efficacy of such a register, there is a duplication of this register with the National Child Protection Register. The registers are administered by two separate departments leading to the potential for a duplication of resources. The Committee was urged to consider the potential pitfalls of the duplication and to consider consolidating the registers into one child protection register.

Mr Naviek Ramdeyal
Mr Ramdeyal who had 15 years’ experience as a child prosecutor, supported the amendment as he felt that sections 15 and 16 were in gross violation of children’s constitutional rights. In his experience, statutory rape was often used after pressure had been placed on a child by their family, when in fact there had been consensual sex. He spoke about his experiences of detaining children at school in order to question them. He further felt that diversion did not save the process from being in violation.

Meeting report

Childline submission
Ms Cheryl Morilly, Childline Senior Manager: Western Cape, presented on behalf of Ms Dumisile Nala who authored the written submission. Childline’s services include dealing with sexual abuse and exploitation and rehabilitation and awareness programmes for children and adults on child protection issues including sexuality. As an organisation Childline does not promote sexual activity among adolescents, but rather attempts to provide them with information and life skills which will hopefully aid in delaying their sexual debut. It therefore submits strong support for clauses 2 and 3, because sections 15 and 16 have had the effect of preventing children from accessing services including advice and counselling on responsible sexual behaviour; as well as clinical services such as contraception and antenatal care. Childline has been involved in a death review into child deaths in a select region of Kwa-Zulu Natal, where it was found that the highest incidence of death is that of foetuses where mothers have resorted to illegal abortions or concealment of the birth of the foetus. Furthermore, a Human Sciences Research Counsel report from 2014 which indicates that the criminalisation has not reduced the incidence of HIV infection rates in young teenagers. Many have expressed concerns about the state of our society, the need for moral regeneration and to -curb adolescent sexual behaviour. She noted that the Criminal Law (Sexual Offences and Related Matters) Amendment Act (Sexual Offences Act or the Act) has had the effect of cutting off communication between parents, counsellors and children, because any caregiver in whom the child confides about sexual behaviour is under a duty to report that child and their partner. Criminalisation of consensual sexual behaviour also distorts what is known as normal sexual exploration among adolescents. It is agreed that non-consensual sexual activity should be appropriately followed up by the criminal justice system. Childline’s experience indicates that when police spend time investigating consensual sexual behaviour among young teens, this diverts attention and resources away from effectively and appropriately managing serious sexual crimes perpetrated by adults against children. Some adolescents do not have the knowledge or maturity to make healthy sexual decisions and criminalisation creates a fear of seeking appropriate information. This in turn leads to poor sexual choices and developmental outcomes. The criminalisation of young adolescents therefore has negative consequences for the child, producing stigma and exposure to processes which may have a detrimental effect on the child. An example is that police management of children is rarely sensitive to the needs of the child. Consultation with trainees attending Childline’s training on the Sexual Offences Act showed unanimous agreement that criminalisation of consensual sexual activities between adolescents is counter-productive to the development of young adults’ responsible sexual behaviour.

Ms Morilly said the recommendations on alternatives include parents, caregivers and NGOs need to create a safe space for discussion of sex with young teens, to facilitate their making responsible and informed choices about their sexuality and sexual behaviour. Hence, prevention and early intervention programmes ought to be developed to facilitate responsible sexual behaviour. It has been suggested that schools and religious organisations create positive sexuality programmes for adolescents. Platforms for anonymously asking questions and obtaining appropriate responses on healthy sexual choices should be created for young people, without fear of exposure or exposure to a criminal process.  

Ms Morilly turned to children who commit sexual offences and listing on the National Sex Offenders Register (NSOR), saying Childline is not of the view that no child should ever be placed on the register, but there should be a thorough assessment of the child, an opportunity given for the child to participate in a sexual rehabilitation programme and a reassessment of the child’s risk to others. The motivation for this is that Childline strongly supports the ethos of the Child Justice Act which establishes processes for dealing with children in conflict with the law congruent with restorative justice and rehabilitation. Research has labelled inclusion of children’s names on such a register as cruel and inhumane punishment, because it has lifelong consequences and the labelling may preclude the child from fulfilling its life script. Further indicates that registration requirements place limitations on children’s ability to embrace a reformed life and is detrimental to young offenders. Research also shows that children are different from adults and are less likely to re-offend if put through a well implemented rehabilitation programme. Child offenders tend to offend against similarly aged people, which is not an indicator to a lifetime pattern of offending. Children also tend to offend for different reasons and different factors motivate their offending. In Childline’s experience the majority of child sex offenders have been abused themselves or exposed to domestic violence and placement on a Register will not provide effective remediation for these violations. Children’s behaviour, because of both emotional and neurological immaturity tends to be more impulsive, less coercive, lacking in anticipation of consequences, may be enacting a real life experience and motivated by confusion or anger. It is therefore important to note the critical motivational, neurological, psychological and behavioural differences between young sexual offenders and adults. During adolescence a child’s behaviour is less likely to have set into a fixed pattern and therefore children are more amenable to successfully completing a rehabilitation programme which addresses their sexual behaviour. Assessment processes prior to inclusion on the Register will enable the potential for rehabilitation to be assessed and appropriately responded to. Evidence into the effectiveness of registers in protecting children from sexual abuse is poor. The overall submission is not that adolescent sex offending behaviour should not be seen in a serious light, but should be dealt with in a manner appropriate for children and in line with international and national child justice principles. It is important to note the critical shortage of rehabilitation programmes for child sex offenders and therefore the need to invest in children to ensure the long term sexual safety and freedom from abuse in South African society.

National Association for Child Care Workers (NACCW) submission
Ms Cindee Bruyns, Senior Mentor National: NACCW, said the NACCW is an organisation of more than 4000 child and youth care workers who operate in the life spaces of impoverished and vulnerable children. The NACCW does not support sections 15 and 16, as there is no benefit in criminalising consensual sexual activity between adolescents. This does not extend to sanctioning non-consensual behaviour. However, adolescents find themselves in the space where they are seeking to discover themselves and putting punitive measures in the way of this will have detrimental consequences to them choosing to themselves. As has been pointed out there are also problems with placing children on a register. NACCW has found that many of the children experimenting with sex at lower ages are in communities which are the most poor. Criminalising consensual sexual behaviour will cause a loss of trust in the adults working with them and cause them to miss out on the guidance which the adults in their life spaces can provide.

Ms Bruyns felt that most interested parties agreed that decriminalisation was the right move, but remained concerned about how to best protect children. Government and civil society must ensure there are resources, skills and programmes aimed at delaying the sexual activity of children. This should not be done through the criminal justice system, but rather through social service professionals building trust and rapport with children, enabling them to have the conversations which will lead to better sexual choices. While it may seem liberal to say that having open discussions about sex with young children is the correct method, in Ms Bruyns’ experience it is only through this form of rapport building that a true impact can be had on children’s lives and their choices. Children need to feel free to engage with social service professionals and talk about their concerns, instead of turning to their peers who would not be able to guide them as well as people like social workers. Criminalising consensual sexual activities cuts off this line of open communication which enables the guidance process. She spoke to an example where work was being done with a group of children who had been the victims of sexual abuse, who needed to be tested for sexually transmitted diseases. As the children were fearful and apprehensive, it was only through open communication with adults in a safe space that these fears were overcome and all the children involved were able to choose that they wanted to go for testing. Another means to encouraging healthy sexual choices in children is through the general reduction of poverty. Further, creating a workforce which works in children’s life spaces that such workers can have a deeper impact on children’s choices. This is what the NACCW is engaged with and through the relationships built in children’s homes and efforts such as ‘safe parks’ are children able to come forward with their questions and receive guidance which helps delay engaging in sexual activity. There is also a need for parenting workshops which enable parents to respond to the difficulties of parenting and part of this is informing them about their options when it comes to dealing with their children.

In Ms Bruyns’ experience it is only in the space of trusting relationships built with children that one is able to foster mature decision making and guide children. She reiterated that decriminalising consensual sexual behaviour will provide the space for this work to be done.

Mr S Swart (ACDP) said there is agreement that children should not be engaging in premature sex, with some being of the opinion that it is morally wrong and the question is therefore how best to address this concern. He asked whether either of the presenters would suggest some form of social development intervention as a mechanism to address the needs of children engaging in inappropriate sexual behaviour. Ms Bruyns had mentioned in her example that domestic violence had been a factor and could a child in such a situation be a child in need of care and social development interventions. Secondly, with the court order stating that criminalisation is not an effective deterrent and research supporting this, his concern was what would the impact of decriminalisation. Specifically that teenagers might get an incorrect perception from decriminalisation, although he accepted that it is everyone’s responsibility to spread the message that the court order and Bill are not encouraging adolescent sex. Lastly, how are children to be protected from themselves as impulsive and curious people who have not reached the stage of cognitive development to understand the long term implications of their decisions. He agreed that families and social institutions, such as churches and civil society organisations, need to be empowered; with the state stepping in perhaps as a last resort.

Mr L Mpumlwana (ANC) said all the presenters speak about consensual sexual activities, but this is the problem: when are children capable of consenting? What is meant by consent and in their experience at what age are children able to truly consent to sex, knowing the full implications of such activity? The presenters have also said social intervention through communication, before children engage in sexual activity is preferable to criminalisation. He wanted further explanation, because it would certainly not be possible to reach every child in South Africa. Thirdly, what is the proposed replacement for the criminal sanction, particularly as the perception will be that adolescent sex is now being sanctioned? This is especially as the risk is compounded by the potential for young teenagers to fall pregnant and their ability to consent to abortions.

Mr M Redelinghuys (DA) said there seems to be general agreement about the role of social developmental and educational programmes in addressing the broader societal problem which the legislation initially sought to address. He questioned the capacity of the Departments of Social Development, Basic Education and Health, to render such services. He asked this specifically, because when the Bill is taken to the National Assembly, Members of the Committee will have to justify their positions and alert others to potential capacity or financial concerns raised by the Bill.

The Chairperson said in the previous sitting it had been agreed that the decriminalising of consensual adolescent sex was not to give them licence to engage in sexual activity, but came about because the provisions of the Sexual Offences Act could not meet the standard of the best interests of the child.

Mr B Bongo (ANC) said the Committee must be conscious of the fact that it is reacting to the decisions of the Constitutional Court and that decriminalisation does not mean legalising consensual sex between adolescents. However, the perception may be contrary to this and how will the organisations present this message to the public. A programme needs to be designed which educates people about the fact that the Bill does not encourage sexual activity between adolescents, but rather that in the event that it has happened, it is not a crime.

Ms Bruyns, on what interventions ought to replace criminalisation, said social interventions would be the best platform. She thought social workers and child care workers are appropriately placed in children’s lives to have an impact. On whether or not any Department would be capable of fully implementing the very good legislation which exists in South Africa, she said man power is always a problem. However, placing the extra manpower into criminal justice, rather than elsewhere, is not going to aid the situation. The Department of Social Development (DSD) is aware of their not having the correct manpower to deal with the situation and this has stimulated partnerships with organisations like NACCW in projects like Isibindi to try and fill the social service gap. The age of consent remains 16 and nobody would like to see this lowered, what is being said is that criminalisation is an obstacle to speaking to children about making the correct decisions while under the age of consent. This should be the message given to children, that while it is still not okay to engage in sex under 16 as one cannot give consent, but that this is not a criminal matter and is rather a social service matter. She said people dealing with HIV/AIDS have suffered under a stigma for many years and criminalisation places this conversation ‘back into the closet’ when it comes to children.

Ms Morilly agreed that adolescent sexual behaviour is a social, not a criminal issue and information needs to be provided to make wise decisions about sexual behaviour. It is a difficult task to try and reach as many children as possible; speaking on morality should be done where children are already: in schools. The DSD does not on its own have the capacity to complete this work and this has led to partnerships with NGOs. However, this needs to be done on a much broader scale as while organisations try their best there are children which are not reached. Therefore, the enterprise needs to be upscaled to have universal reach.

Children’s Institute submission
Ms Shanaaz Mathews, Director: Children’s Institute, said the Institute is an organisation mainly concerned with policy interventions relating to children, through policy research and advocacy. One of the Children’s Institute’s research focal areas is prevention and responses to violence against children. The submission draws from both research conducted and engagement with other sections of civil society. The research conducted has shown that the child protection system is incapable of dealing the high level of child abuse in South Africa. Therefore, an increased base of financial and human resources is needed to facilitate a coordinated response to child abuse and improve child protection systems. Engagement with the professionals which the Institute is involved in training has shown that there is major concern with the requirement of reporting sexual offences among minors. Within this, ethical dilemmas are posed regarding consenting sexual activities among minors. The submission argues that consensual adolescent sexual activity should not be a crime. Further, children convicted of sexual offences ought to be assessed before their names are included on the NSOR and it is critical that a suitably qualified person should be required to do this through regulations. It is also important that what type of qualification is required be specified. Further, children who warrant inclusion on the Register should again be assessed before their names are removed. Particularly as the Committee is obligated to consider the best interests of all children.

Ms Lucy Jamieson, Senior Researcher: Children’s Institute, asked to respond to Mr Bongo’s concern about the public perception created by decriminalisation. It is clear that there is a concern that the public will perceive the age of consent being lowered. While experts and professionals may be able to discern the difference between decriminalisation and sanctioning, the public may not be able to do so with the provisions as they stand. The Children’s Institute is fully in support of the provisions put forward by the Department of Justice and Constitutional Development which decriminalise consensual sexual activity. However, it believes that the Committee can go further and discussions have brought forth the proposition that section 57 could be amended to explicitly state that the age of consent remains 16. Sections 1, 15 and 16 would then deal with decriminalisation and what is done with children contravening that age of consent. She noted that the Institute has not applied its mind to the point of submitting a specific provision, but asked to be indulged and allowed to submit this within a week. She added that this will not in any way change that crime of adults engaging in sexual activities with persons under the age of consent or the order of the Constitutional Court. It is felt that this explicit statement would send a clear message that children could understand and deals with the valid and legitimate concern raised by the public and Members.

Ms Jamieson encouraged the Committee to make use of international law in its deliberations on the Bill. The Constitutional Court has looked at the rights of children to dignity and privacy but did not look at the UN Convention on the Rights of the Child. Specifically, Article V which is colloquially known as the evolving capacity clause. This helps unpack what the role of parents and the state are, with the concomitant responsibilities of children. It reads: “state parties shall respect the responsibilities, rights and duties of parents, where applicable extended family or the community as provided for by local custom, legal guardians or other persons legally responsible for the child, to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance on the exercise of the rights contained in the present convention”. The Committee of Experts on the Rights of the Child published a general comment to help governments and legislatures understand how to give effect to adolescent’s sexual and reproductive rights. Drawing on the above Article, it indicates that all adults have the responsibility to guide children appropriately. This is provided for in numerous other legislation and policies geared towards this, including from departments other than DSD. This is therefore a collective and shared responsibility. The response by the state in supporting parents and relevant adults to give guidance is in place. Section 151(b) of the Children’s Act places a duty on social workers to investigate children whose behaviour cannot be controlled by adults. It is most appropriate that state resources are not thrown into investigating all cases of children who engage in sexual activity. It is the duty of parents and communities to deal with this first, but where it comes to an extreme case there is state support through the Children’s Act. There are programmes and policies in place for the state to provide the relevant and correct support to parents. By adopting the Bill, with an added amendment to section 57, all of the concerns and perceptions can be covered.

Dr Estelle Lawrence submission
Dr Estelle Lawrence, in her private capacity, said she was a medical doctor employed by the Department of Health, in their school health services programme. Part of her job as a school doctor was to support health facilities to create adolescent friendly health services. She fully supported the proposed amendments as far as they relate to the decriminalisation of consensual sexual activity between adolescents of similar age. She felt the current provisions do not protect children and in fact expose them to harm.

Dr Lawrence said according to the World Bank the adolescent fertility rate, which indicates the number of births per 1000 women aged 15 to 19, dropped from 54 in 2010 to 51 in 2012. Secondly, in the latest National HIV Prevalence, Incidence and Behaviours Survey 2012, the overall prevalence in those aged 15 to 24 has dropped from 8.4% in 2008 to 7.1% in 2012. Therefore, the numbers are dropping. However, she believes the prevention of HIV and teen pregnancy remains a national health priority. One of the reasons the Sexual Offences Act was passed, was to address the challenge of teenage pregnancy and high HIV prevalence rates through an attempt to delay sexual debut. Studies suggest that initiating sex at an earlier age increases the lifetime potential of acquiring HIV and therefore the emphasis on delaying sexual debut as a means for HIV prevention. For this reason she fully supports evidence based programmes aimed at delaying sexual debut. She did not think that criminalising consensual sexual behaviour between adolescents is the answer.

Dr Lawrence said UNAIDS had suggested HIV be addressed using combination prevention efforts, involving strong collaborative efforts between various service providers at community level and should include evidence based bio-medical, psycho-social and systemic interventions. Locally, the National Strategic Plan for HIV, STI and TB has followed suit by recommending comprehensive education on sexuality, reproduction and reproductive rights, and strengthening health services to provide adolescent friendly heath service packages. These recommendations are based on evidence collected from a number of studies. A systematic review of studies looking at HIV prevention in young people in sub-Saharan Africa showed strong evidence of the efficacy of a number prevention efforts. Consisting of:
- education interventions in schools which are well designed and implemented, led by adults with or without the involvement of peers;
- interventions delivered such as male medical circumcision, condom use and HIV testing;
- included interventions supported by communities and families.

Similarly, systematic reviews showed that multi-focal interventions combining focused sexual and reproductive health educational programmes and access to access to contraception are required to reduce teenage pregnancy. They have also shown that the benefit of increasing knowledge in changing adolescent’s attitudes about early sexual debut and sexual risk behaviour are important. Giving adolescent’s information about sexual activity and guiding them has not been shown to increase their sexual activity.

Dr Lawrence said for these recommended strategies to be effective they must be presented in an adolescent way. The World Health Organisation describes adult friendliness as acceptable and accessible to adolescents. South Africa has progressive policies and laws, including South African National Youth Policy and Integrated School Health Policy, which guarantees access to adolescent friendly healthcare. To explain what is meant by ‘acceptable’ Dr Lawrence said adolescents are less likely to use a health service if the practitioner were to scold them, ask difficult questions or not maintain confidentiality. Her concern was that the criminalisation at hand and making it obligatory for healthcare practitioners to report consensual adolescent sexual behaviour means that adolescents are less likely to access services which will help protect them from HIV or teen pregnancy. It is also not only about the sexually active adolescent, but also those yet to engage in sexual activity who need to feel free to ask healthcare professionals about sex and be guided in their decisions. A health service cannot be adolescent friendly if its clients fear that they will be reported if they disclose their sexual activity and would be working against the objective of providing services and guidance to adolescents. Under the UN Convention on the Rights of the Child signatories have an obligation to provide the best attainable health for children and criminalisation would be an obstacle to this.

Mr Bongo said Ms Jamieson had provided a practical solution based in legislation, because decriminalisation has been agreed upon and what is required is a means to protect children from adults and each other. He reiterated that the age of consent being 16 is the point of departure and this will help allay much of the fear around the amendments. He encouraged the composition of a technical drafting team, to deal with the alternative clauses submitted by various presenters. Lastly, he was in agreement that the suggested amendment of section 57 of the Sexual Offences Act would be a solution to many of the perceived problems with the amendment.

Ms G Breytenbach (DA) said, although she had missed the beginning of the submission, she has difficulty understanding how the suggested amendment to section 57 would remedy the situation, seeing as the age of consent is in fact 16. She asked for more detail on this suggestion. She was also worried by the assertion that support functions by the state for children are in place, because in her experience this was not the case. The DSD is totally under resourced and while she agreed with the suggestion that this ought to be the appropriate means to deal with the problem, we are not dealing with an optimal situation and the reality is that these services are not being provided. The Children’s Institute had also suggested that appropriately qualified persons ought to conduct the assessments into which child offenders should be included on the NSOR. To Dr Lawrence, she asked whether health professionals are the most appropriate persons to decide on reporting on adolescent’s sexual concerns, given the legal position and whether this could not put children in trouble at risk, with health professionals being more concerned about confidentiality than other social issues.

Mr Swart said he had also suggested the amendment of section 57 and asked for further comment on the proposed amendment. Particularly, a consequent amendment to section 1(3)(d)(iv) which also speaks of the age of consent. He agreed that this could resolve the perception of the public. He asked Dr Lawrence why her submission had repeatedly used the phrase adolescents ‘similar in age’, given that what was being dealt with was consensual sexual activity through the range of 12 to 16. The problem was whether children as young as 12 have the cognitive development to handle sexual activity. Further, the issue of inconsistencies in this are with girls as young as 10 being able to have abortions, but only being able to put the children up for adoption at later ages.   

Mr Mpumlwana said the proposal that section 57 be amended is interesting. He wanted to know what the position would be with children younger than 16 and whether this would include sex between children.

Mr C Msimang (IFP) said the submissions suggest the problem of protecting vulnerable adolescents can be addressed by recourse to parents, social workers and the like. However, incidents like teen pregnancy are in the ascendance, therefore as these institutions have not been fully effective thus far, what would make them more so?

The Chairperson said the Children’s Institute has suggested presenting its amendment to section 57 and this should be looked at to decide when it would be best to have the Institute present.

Ms Jamieson said the amendment of section 57 has only recently begun to be considered. Looking at legislation in other jurisdictions it was seen that there are statutes which stipulate an age of consent and then decriminalise sex between children below the age of 16 engaging in sexual activity. The submissions thus far have also shown that even persons in the legal fraternity do not truly understand where is the age of consent. The exact wording is still unclear and the Children’s institute is more than willing to work with the drafters from the Department. On the programmes already in place to support adolescents and the capabilities of the DSD to implement such, Ms Jamieson conceded that this and other departments are under resourced, however it is important to note that the legislative and policy framework is in place which appropriately deals with children and their guidance under their parents. What is also important is that evidence is coming forward that these programmes are effective in South Africa, such as the one run by Dr Anik Gevers called Prepare which has shown that the best way to not only delay sexual debut, but also intimate relationships, was adult guidance. Previously sex education was limited to the anatomical, but the Prepare programme dealt with broader questions. The evidence being collected will help in lobbying the various departments to dedicate more funding to such causes. It is also true that many of the programmes have only come online after the passing of the Sexual Offences Act. She also said that under resourcing of a good legislative framework should not be dealt with by legislating something else. The concern with the inconsistency in age limits in this area has come up several times during the course of the submissions and drawing attention to Article V of the UN Convention on the Rights of the Child was to reinforce the idea that children have varying capacities, not at different ages per se, but at different stages of their development. The Children’s Institute has published a guide as to how different Committees of Parliament have tried to cater for this variance through various legislation. She stressed that just because these ages are different does not mean that the principle of evolving capacity is not being consistently applied. Answering Mr Mpumlwana’s question of clarity, the amendment to section 57 would mean that only people above the age of 16 would be allowed to consent to sex, below this age a child could not legally consent to sex. This is believed to deal with the concerns about sanctioning child sex, however the Constitutional Court judgment has stated that this absence of consent cannot lead to children being criminalised and this is what sections 15 and 16 would be doing. This was the Institute considered, but not a final position, and a more definite position would be able to be provided by the beginning of the following week.

The Chairperson asked the Institute to communicate with the staff for finalisation of that arrangement.

Ms Mathews replied to Ms Breytenbach’s question about who would be a suitably qualified person to conduct the assessments, saying that a probation officer is not necessarily qualified to make these assessments. What would be required is someone who is capable of understanding the development capacity of the child and age-appropriate sexual behaviour to make the assessment. Therefore, she would caution simply relying on probation officers who may not necessarily be knowledgeable in child on child sexual abuse. As mentioned in Childline’s submission appropriate rehabilitative programming will also need to be looked at aside from inclusion or removal from the Register. Further, that this should be dealt with carefully through regulations.

Dr Lawrence was not completely sure of the question, but she had understood Ms Breytenbach to be questioning the validity of a medical practitioner being best placed to decide if a crime had been committed.

Ms Breytenbach clarified that her concern was more about if a medical practitioner is to decide to report or not, would they not be inclined to tend towards protecting the child’s confidentiality. At the expense of potentially important issues regarding the child.

Dr Lawrence responded that confidentiality is maintained by healthcare practitioners provided there is no harm caused. Therefore, the confidentiality would not be maintained where a child is coming to harm. Replying to Mr Swart, her use of the term 'similar in age' was done loosely, to indicate children between the 12 and 16. Responding to Mr Msimang, she said the efficacy of social institutions in dealing with premature sexual activity is evidenced by the dropping in the percentages of adolescent fertility and HIV prevalence, therefore they are working to an extent. What could be done to improve this is to stop working in silos, because the programmes which have worked are the ones with integration where government departments work in tandem with each other and society.

Molo Songololo submission
The Chairperson said the reason this submission was delayed was because the Committee wanted to ensure that the children who would be contributing to the submission were not going to be speaking to their own personal experiences which could potentially open them to harm. As under the Child Justice Act if this was the case these submissions would have to be made in camera. The children are here to voice their perceptions and this is a good example of children’s voices being heard in Parliament.

Mr Patrick Solomons, Director: Molo Songololo, said his organisation had conducted community forums in Atlantis, Delft and Beaufort West, in an effort to allow adults to express their views on the Bill. A child participation process was also held and the children present had been part of this process. As child participation is a key pillar of their rights, this is very important and they are present to exercise this right. The submission was to be in two parts: firstly the young people would reflect their views and secondly he would relate the views expressed by adults in the community forums, specifically on consensual sexual activity between adolescents and also on the inclusion of names in the NSOR.

Ms Sisipho Bokwe, Molo Songololo Children’s Forum representative, said her submission would reflect views of teenagers on the Bill. As a teenager of South Africa, she would not say whether it is wrong or right to have sex as this depends on at what age it is being engaged in. Sex is part of every human being’s developmental process to engage in sex. While it is wrong to engage in sex at early ages, but most children do not get guidance from home. Many parents barely speak about sex, because they feel uncomfortable. Children therefore learn about sex from their friends, television and the internet; at times getting the wrong advice from the wrong people. Many children do not get proper information, but would like to experience sex. Teenagers develop sexual feelings at some point in their lives. Sex is not a crime, but part of nature and growing up. Teenagers are under peer pressure to have sex, kiss or engage in other sexual activities. The law cannot make nature a crime and teenagers should not be criminalised for developing natural feelings. However, she believed adults should not engage in sexual activity with children. Children and teenagers are still vulnerable and can be manipulated despite not being mature enough for an adult sexual relationship. At times adults who have sex with children provide for the child’s family financially and if they were to stop having sex with them the family loses its only source of income. This puts the teenager in a very difficult position. Regardless of the legal age of consent, people of 16 and 17 years old are still children and deserve the protection of the law.

Ms Rose Amkele Ndaba, Molo Songololo Children’s Forum representative, said she had been elected as a representative by her peers at the children’s forum workshop. Children between 12 and 15 should not engage in sexual relations or acts with each other. Sex is a big responsibility, with many consequences and risks for teenagers. There are many diseases out there and children can easily contract such diseases and girls could even fall pregnant. This is because there are many parents who do not teach their children about sex. When children decide to have sex they should have knowledge about what they are doing. She believes starting to have sex an early age is not a good thing, because it will take children’s minds off of studying leading to them not finding a good job or being able to take care of themselves. It is also possible that other teenagers will follow in one’s footsteps and start kissing, touching or having sex with each other; which will get them into trouble. Parents tell their children to not have sex before the age of 18, because they do not understand everything that comes with sex or ready to take the responsibility. However, it is known that many teenagers do develop intimate and romantic relationships with each other between the ages of 12 and 15 or 16 and 17 years of age, and so may engage in sexual acts with each other. Even though she did not approve of sex at an early age, she knows that sex is part of natural development and that eventually everyone will eventually develop intimate feelings towards another. She did not think teenagers will stop kissing, touching or having sex with each other just because it is against the law. Some might even find it interesting to break the law, but most teenagers do not even know that it is a crime to have sex as no one had told them so. It was not learnt at home or at school. The law cannot make what is natural and normal an offence. Consenting children engaging in sexual acts must not be criminalised.

Mr Thomas Asten, Molo Songololo Children’s Forum representative, said he does not think children who engage in consensual sexual acts should not be criminalised, as stated by the law. He felt that if both teens consent it should not be a crime. Even though he was convinced that teens should not be having sex at an early age, the ones that do should not be treated as criminals, because they are not. In cases where both teens agree to sex, they are just experimenting and exploring each other; this is not a crime. Teenagers who are arrested for kissing, touching or having sex will feel very guilty, ashamed and embarrassed for something which they both agreed upon and is part of a natural development process. Some may even feel discriminated against, humiliated or stigmatised by other, although they did not hurt anyone or steal anything. What about their future? A teenager who has a criminal record, because they had consensual sex with another teenager will not find a job and their whole future is being put at risk for one kiss or touch. That is definitely wrong, even more so where children did not know they were committing a crime, because no one taught them this at home or at school. Whereas sex and sexual activity is “omnipresent”, on television, in movies, pop songs and so on. Therefore, he did not agree with the law as it stands, because it turns teenagers into criminals and puts them into jail where they do not belong, resulting in them not being able to go to school or ever find a job to take care of themselves. On the National Sex Offenders Register, he said as a child he is not happy with the Register as it treats adult and children sex offenders the same and this is not fair. He understood that if a child is convicted of a sexual offences crime, their name will go onto the same register as an adult who committed a serious sexual offence such as rape or physical assault. He felt there should be a separate register, just for child sex offenders with strict rules and guidelines to determine if a child sex offender’s name should go on to the register. There must be an opportunity for a child to make representations for their names to not be put on the register, there must be an annual review to see if their name can be removed from the register and once a child turns 18 their case must be reviewed to check if their names can be removed. Further, a child sex offender who turns 18 should have their name completely removed after five years. Lastly, he felt that the title of the Criminal Law (Sexual Offences and Related Matters) Amendment Act is too long and should be shortened so that children and young teens can remember the Act.

Mr Solomons reflected the views which came out of the community forums from adults who participated in the discussions. Like the young people they agree that sex is a difficult subject to talk about and they find it difficult to talk about, but they do realise that sex is something which we all live with and have to deal with every day. They further believe that parents, educators, community workers, development workers have a responsibility to equip children with information, to enable them to deal with their sexual development and to make wise choices either to have sex when they are ready. Concerning adolescents and sex the people were clear on the matter and recognised that teens will be having sex, regardless of morals. Some indicated that they have tried everything to inform their children about sex in an effort to delay sex, but unfortunately their children still engaged in sex. They believe their children should not be criminalised. Regarding adults who have sex with children they recognise that this is wrong. They were aware that there was a legal age of consent and respected that this was the law. They were very concerned about the present provisions dealing with children aged 12 to16. They were aware of the evolving capacity of children and therefore it is difficult to regulate for the situation where a 12 year old may be more mature than a 17 year old. They state that protection should still be given to children who already can consent, as was raised by the child representatives (although Mr Solomons was aware of provisions in the Sexual Offences Act dealing with sexual exploitation and the like). They further state that often the bad results of sexual intercourse such as pregnancy and disease, is a result of men who have sex with children and why are these people not criminalised more effectively. Basically the community forum’s position is that children should not be encouraged, but when it does happen they should not be treated as criminals, because it is part of their normal development and cannot be stopped. They also expressed that most children who engage in consensual sex, either the parents do not find out or are the last to know. Therefore, they support the Constitutional Court ruling and believe that Parliament’s job is to restore and uphold children’s rights to dignity, privacy and to have their best interests be considered. There was also concern about the NSOR, they do not support children being recorded on the same register as adults, because Register was supposed to protect children from adults. Therefore there is confusion about why children are being placed on the register, although they are aware that children do commit very serious crimes. They also note that because of children’s evolving capacity they have diminished responsibility and call for a social response rather than a criminal response. Further, that as the criminal justice system negatively affects children’s rights a different process more focused on restorative justice should be pursued which should be guided by the courts making use of designated individuals trained to help children.

South African Human Rights Commission (SAHRC) submission
Ms Fadlah Adams, SAHRC Senior Researcher, said given the submission over the past few days, the technicalities of the judgment needs not be dealt with and she would therefore focus on the specific concerns. The Commission has a specific children’s rights portfolio under its mandate and there has always been a strategic approach to how the rights of children are upheld in South Africa. To this end there have been several engagements under the SAHRC on the Sexual Offences Act and the Amendment Bill. The submission refers to the Commission’s 2005 study on sexual offence against children and whether the criminal justice system protects children. In 2006 the Commission made submissions to Parliament around concerns of this nature around the then amendment Bill, although the core of that submission deal with the sexual grooming of persons with disabilities. She noted that shortly after the Sexual Offences Act to effect, the SAHRC was inundated with complaints from young people asking whether they would now be criminals if they were to kiss or touch each other. The SAHRC was mindful of the fact that the present issues would become contentious in time.

The SAHRC as a constitutional body upholding the Bill of Rights agrees with the Constitutional Court. To highlight key points of the cases, both courts spoke to issues around the right human dignity, privacy and best interests of the child. It is important to know dignity, along with the right to life, is the fundamental basis from which all other rights flow. At the same time criminalising consensual sexual activity invasively impacts on that child’s right to dignity. The Commission agrees with the Court that if one’s innate sexual choices are not respected by society or criminalised, one’s inherent dignity will inevitably be diminished. It is often difficult to think of adolescents’ rights to privacy and while there are many opposing views, children do have the right privacy. On the best interests of the child, this is a guiding principle for the Commission and many other NGOs that everything is looked at through the overarching lens of whether something is in the best interests of the child. The SAHRC has often found in its work that of often the best interests of the child are overlooked. This is seen in legislation as in the present case where while intending to protect children they were in fact harmed by the criminalisation. The Commission emphasises that the purpose of the amendment is not to reduce the age of consent, but rather about removing the criminalisation where adolescents engage in sexual activities with one another.

Ms Adams said the SAHRC’s concern with the NSOR is that placing children on the register they are being criminalised for something which is completely normal and natural. Meaning that for life they would be tarred with something which had occurred while they were younger. The Commission therefore does not support this, as it agrees with the Constitutional Court that the child’s moral landscape is still being shaped. The SAHRC has often raised the issue of a duplication of registers in South Africa. The National Child Protection Register which records all charges of abuse or deliberate neglect of a child, under the administration of the DSD and under this Act there is the National Register for Sex Offenders. The concern is that there is little evidence that this will in fact deter offenders from committing further crimes and may lead to such activities being taken underground. The Commission has recommended that Parliament consider the implications of the registers during its deliberations. Further, some points to look at including:
- how the two registers are to be administered, maintained and updated;
- whether there is any duplication of resources given that they are housed in two different Departments;
- what measures are in place to ensure that there is no cross referencing between the registers with offenders migrating from one register to another;
- whether specialised units such as the Promotion of the Rights of Vulnerable Groups Unit in the Department of Justice and Constitutional Development collaborate with other government departments in the actual implementation of the legislation,
- the insufficient budget allocation to implementation of the Sexual Offences Act itself and whether there will be sufficient resources given to the new legislation;
- the implications of not disclosing one’s listing on the register and whether the Department has considered other intricacies of this nature

Ms Adams said the primary concern is whether it would not be better to have one comprehensive register covering both the Children’s Act and present legislation or if the Committee or Department feels there is a more appropriate way to handle this. She reiterated that the SAHRC is in support of the Bill. Further, that particular care is required to help children understand their sexual development and ensure that caregivers are adequately equipped to deal with the sometimes difficult conversations around children having sex. While being aware that we all come from different religious or ideological backgrounds, it is difficult for parents to engage, yet children are going to explore regardless. Therefore, the Commission does not want to have children criminalised or stigmatised for engaging in behaviour they may not have even known was criminal. Further, the Commission is concerned about what measures are being put in place to deal with the prevalence and ready availability of stimuli in the media and on the internet. Lastly, the SAHRC supports a restorative justice approach being taken.

Mr N Ramdeyal submission
Mr Naviek Ramdeyal, a legal freelance writer, said he is a former child investigator with 15 years’ experience. He prefaced his statements saying that it must not be forgotten that statutory rape is at issue. Many people do not even know about the term statutory rape until they are confronted with the charge. Often there is pressure from the family to lay the charge of statutory rape, forcing a case to be investigated. In his view children engage in sexual activity at young ages, because they see it as an experiment and they are keen to try it sooner than later, failing to understand the true repercussions and the state of the law. He put forth a lay example, saying that at times a victim is trying to protect themselves and is forced to open a case of statutory rape. When the police are involved it is “common practice” that the story changes to a claim of rape, where it in fact is consensual. Prior to the moratorium being placed by the Constitutional Court, it was the aim of the state as police and prosecution, to secure the conviction of the child. He had addressed the Anti-Corruption Campaign with an audience comprising of judicial officers, police and correctional services. He was of the view that sections 15 and 16 were in gross violation of the Constitution and he was surprised that he did not receive any response from the audience. What people take for granted is that Magistrates are ruled by statute and are under an obligation to apply statutory provisions. What will then happen is that the victim will give her side of the story, a preliminary investigation is done and often Mr Ramdeyal would have to go to the school of the “so-called perpetrator”, pick up the accused and take his statement and any witnesses statements. The accused will have to be put through an entire motion of a court process and before the trial it will be agreed by the parties to the case that a diversion will be pursued. He disagreed with the diversion process, because it is in no way in aid of the accused child and is in fact in complete violation of their constitutional rights. He was relieved when the Khampepe J gave the judgement declaring the provisions of the Sexual Offences Act unconstitutional as he had previously held this belief. He said the Sexual Offences Act at present indirectly promotes larceny, stealing rights away from children. These children are 14 or 15 and they are unaware of South African legislation and often the first time they become aware of the offence is when they face the charge. He had often wondered if there was an alternative to court processes and the only option was diversion which he totally does not support.

Mr Ramdeyal said his issue with the Register is how does this benefit society and his answer was that it does not. Therefore, why should a child be placed on the register, particularly as these children have the potential to grow into a valuable member of society.

Mr Ramdeyal said public perception is riddled with absurdities and while the views of the public must be taken into account, the absurdities have to be excluded when the content of the law is considered.

Mr Ramdeyal concluded by saying that as sections 15 and 16 are in gross violation of the Constitution. He would encourage solving the problem through education, specifically sex education, life skills and the precepts of health - rather than using the criminal justice system as the means to deal with the problem.

Mr Swart appreciated the young people coming to the Committee. He said their views would be carefully considered and he thanked the organisers for going out into the communities which the Committee did not have the time to do. He felt it verges on offensive to say that the Committee has legislated absurdities. The Committee legislated the diversion option in good faith and with hindsight there are issues. The Court has now given guidance through its decision. Many people disagree with the decision. He put the scenario to Mr Ramdeyal that a direct consequence of the decision is that where a 12 year old lays a charge of rape against a 14 year old and one cannot prove the absence of consent. The protection of statutory rape falls away, because of the Constitutional Court ruling. Conversely, previously where the 12 year old failed to prove consent they would be liable to be charged under either section 15 or 16. It was never the intention of the Child Justice Act that children be arrested at school. He wanted people to be aware that these are the issues which the Committee is grappling with in working through the requirements of the Court’s ruling. He added that having been part of the legislative process which produced the Sexual Offences Act, it had never been the intention to criminalise kissing, particularly as the law is not meant to concern itself with trivialities. The positive aspect to take up in the process is that families and communities need to be empowered, with the state coming in on a social development basis. He felt this came through very clearly in Molo Songololo’s submission.

Mr Ramdeyal clarified that when he had mentioned absurdities he had been referring to public opinion. It is important to consider input from all sections of society, but generally people are not equipped to deal with the nuances of the law. He was aware of an interview on national radio where a guest had asked, after the first public hearing of the Committee, why government was providing children with condoms in schools. Mr Ramdeyal would have replied that irrespective of whether children have been told about the age of consent or told to only engage in sexual activity after 18, they will engage in sex regardless. There was a caller who had encouraged imprisoning children who engage in sex for life. This was an example of the absurdities which Parliament ought not legislate. He had not intended to say the diversion process was an absurdity.

The Chairperson said a diverse range of opinions had been presented, which would help enrich the Committee’s process of considering how to enact the order of the Constitutional Court. She thanked the representatives from the Molo Songololo children’s forum for their submissions, particularly for emphasising that premature sexual activity is not good for children. As this is the ultimate aim of what the Committee is dealing with.

Mr Asten added that there are ways in which children could be more educated about sex, because at the level of education little is being done for children to learn about sex and speak openly about sex. For example Life Orientation classes are supposed to be such a space but teachers tend to focus on academics more than sex. Young people want to know about sex and if they were aware of the repercussions then they would be less likely to engage in the behaviour. Even when parents speak about sex, they will only say do not have sex until 18, but they will not go into the detail of what the possible consequences could be. Therefore, children are still uninformed and are only exposed to it through the media. This leads to exploration, because of imitation of what is seen.

The Chairperson said Mr Asten was very sensitised to issues around sex and South Africa will know that it has reached an acceptable level of sexual education when most children know as much as he does.

Ms Bokwe said that Life Orientation classes were not being used to their full potential, because the message is limited to telling children not to have sex because this could lead to HIV. Children do know about HIV, but they need to know the detail about when their bodies and minds are ready for sex. Parents also should be exposed to programmes to help them overcome the difficulties of talking to their children about sex.

The Chairperson agreed and said the reason for this is that many parents have grown up in an era where talking about sex was a taboo. It has been realised that this should not be a taboo, because this leads to further problems.

Meeting adjourned.

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