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4 November 2015, Vol. 8, No. 2 SAJBL
In October 2013 the Constitutional Court (CC) declared
provisions of the Sexual Offences Act (herein after
referred to as the principle Act, also abbreviated as
SOA) unconstitutional and invalid. The sections were
invalidated because they allowed adolescents (i.e. 12 - 15-year-
olds) to be prosecuted for engaging in consensual sexual activity
with other adolescents.[1] The order of invalidity was suspended,
parliament was given time to rectify the defects of the law and
a moratorium was placed on reporting sexual acts between
consenting adolescents. The process of drafting and enacting the
Amendment Act was hastened by the strict deadline of 18 months
that was initially given to parliament by the CC to finalise the
amended law.[1] Just over a year after the CC judgment, the Minister
of Justice and Correctional Services published an Amendment Bill
for public comment.[2] Public hearings took place over a period
of about five months until March 2015. Unable to comply with
the initial deadline created by the CC the Speaker of Parliament
applied for more time to finalise the law and in May 2015 the CC
granted parliament until August 2015 to put the amended law
in place.[3]The Bill was debated and approved by majority vote in
Parliament by June 2015 and was subsequently signed into law on
3 July 2015. Its full title is the Criminal Law (Sexual Offences and
Related Matters) Amendment Act Amendment Act [4] (herein after
simply referred to as the Amendment Act).
The consequences of the original CC judgment for health
providers were outlined in this publication[5] and others
publications.[6] Suffice to say that the declaration of invalidity
and the moratorium served as a means of giving effect to the
health and other important rights of adolescents (e.g. their right
to privacy and physical integrity).[7] It also operated in support
of provisions of other laws, particularly the Children’s Act[8]
which, for example, allows children aged 12 and older to access
contraceptives. However, the suspended order and moratorium
were only temporary solutions to the negative effects of the
provisions in the principal Act and a more permanent solution in
the form of legislation is welcomed.
This article aims to compare and analyse the new provisions against
the invalidated sections of the SOA through commentary in order to
determine if the amendments are in line with the CC judgment. The
Amendment Act makes four signicant changes to the provisions of
the SOA that are relevant to the discussion here. This article will focus
only on those specic amendments.
Analysis of the amendments contained in
the Amendment Act
Amendment No. 1
Section 1 of the principal Act had two dierent denitions of a
child. Firstly a child was dened as a person under the age of 18 and
secondly, for the purpose of sections 15 and 16, a child was considered
a person older than 12 but younger than 16 (i.e. between 12 and 15).
The Amendment Act removes the second denition and creates
one overall denition of a child as a person under the age of 18.
Furthermore the legislature amended sections 15 and 16 (discussed
below) by directly inserting certain age requirements regarding
children engaging in sexual conduct.
Comments
The SOA is not the easiest piece of legislation to read. This amendment
will reduce any confusion on the concept of a child for the purpose of
the SOA. By inserting the age requirements directly into the relevant
sections 15 and 16 the lawmakers would make those sections easier
for professionals like health providers to read, understand and apply.
Amendments 2 and 3: Relating to sections
15 and 16 of the SOA respectively
The Preamble of the Amendment Act makes it clear that the Sexual
Oences Act is amended ‘so as to ensure that children of certain
ages are not held criminally liable for engaging in consensual sexual
acts with each other…’[4] So the amendment is directed specically
at sections 15 and 16 of the SOA. In its original form section 15
outlawed sex with a child between 12 and 15 years of age, even if it
was consensual. The eect of this was that even if the two children,
The 2015 Sexual Oences Amendment Act: Laudable
amend ments in line with the Teddy Bear clinic case
P Mahery, LLB, LLM
Oliver Schreiner School of Law, University of the Witwatersrand, Johannesburg, South Africa
Corresponding author: P Mahery (prinslean.mahery@wits.ac.za)
Two years ago the Constitutional Court invalidated provisions in the Sexual Oences Act which outlawed sexual conduct between adolescents.
Parliament was ordered to x the relevant provisions and to decriminalise consensual sexual activity between adolescents. In July 2015 the
Amendment Act came into operation with the aim of revising the current Sexual Oences Act in line with the Constitutional Court judgment.
This article evaluates some of the changes contained in the Amendment Act to determine its alignment with the ruling of the Constitutional
Court. It also considers how the changes will impact the reporting obligations of health providers.
S Afr J BL 2015;8(2):4-6. DOI:10.7196/SAJBL.375
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November 2015, Vol. 8, No. 2 SAJBL 5
who are engaged in sexual activity, were both adolescents they were
both guilty of contravening section 15. Similarly section 16 originally
outlawed sexual violations (i.e sexual acts not involving penetration)
committed between children 12 - 15 years of age, even if it was
consensual.
As indicated previously, in the Amendment Act the legislature
chose to remove the consenting age setting from the definition of
a child and to reinsert it directly into the amended sections 15 and
16. The amendment now reads that anyone who commits sexual
pene tration or sexual violation with a child ‘who is 12 years of age or
older but under the age of 16 years’ (i.e. adolescents aged 12 - 15) is
guilty of an offence even if the adolescent consents to such an act.
So the broad prohibitions originally contained in sections 15 and 16
are retained in the Amendment Act. However, two exceptions are
included in the Amendment Act to limit the general prohibition. In
the first instance (the second exception relates to amendment No. 4
discussed below) the Amendment Act goes on to say that there would
be no offence if, at the time of the sexual act, the perpetrator is also an
adolescent (i.e. when both parties are adolescents).
Comments
The CC nding made it clear that adolescents should not be
criminalised for engaging in consensual sexual acts. The Amendment
Act clearly removes that criminalisation while still maintaining
the prohibition of other perpetrators to engage in sexual acts with
adolescents. This amendment is therefore clearly in line with the CC
judgment.
Amendment No. 4
Originally section 56(2)(b) of the SOA created an age-gap defence for
a perpetrator who was 16- or 17-years-old at the time of committing
a sexual violation against (with) a consenting adolescent who was
more than two years younger than the perpetrator. The Amendment
Act makes fundamental changes to the position of the 16- and
17-year-old in this regard. The Amendment Act states that there
would be no sexual oence committed if, at the time of the sexual
act in question, the perpetrator is 16 or 17 years of age and the age
dierence between the perpetrator and the victim is no more than
two years. Furthermore, in the event of the perpetrator being 16
or 17 and there is more than a 2-year age dierence the Director of
Public Prosecution must authorise the institution of a prosecution.
To this end the Amendment Act subsequently removed the original
age-gap defence that was set out in section 56(2) (b) of the SOA.
Comments
Firstly, what is signicant here is that the defence created in terms of
the now removed section 56(2) (b) applied only in respect of a sexual
violation and not sexual penetration. However, the amendment
now covers both sexual penetrations and sexual violations. The
amendment is therefore broader than the original provision. The
second signicant change created by the Amendment Act is that it
replaces the original age-gap defence with an age-gap ‘exception’ to
the oence. The dierence is signicant. When section 56(2)(b) was
applied it meant that if a 16- or 17-year-old engaged in sexual activity
with an adolescent, and the age dierence between the parties
was less than two years, then an oence was still committed by the
older child and the prosecutor could still decide to prosecute. If the
prosecutor decided to charge and prosecute the 16- or 17-year-old
then the child perpetrator would be able to raise the age gap defence
to get acquitted. The defence did not serve as an automatic get-out-
of-jail-free card, it had to be argued in court and it was up to the court
to decide whether the defence would succeed or not. However, the
amendment works dierently. By removing the age-gap defence it
now means that if one child is 16- or 17-years-old and his consensual
sexual partner is an adolescent who is not more than two years
younger, then no oence has been committed at all. No prosecution
will lie against the 16- or 17-year-old. Such a child cannot be charged
because there is no oence.
What does it mean now that the
Amendment Act has become law?
The Amendment has a knock-on eect on section 54 of the SOA,
which is the compulsory reporting section, obligating professionals
like health providers to report sexual oences. Firstly, it is no longer
regarded as an oence for adolescents to engage in consensual sexual
activity with other adolescents. This means that a mature 12-year-
old who seeks contraceptives in accordance with the Children’s Act
and who is knowingly engaged in consensual sexual activity with
another child between 12 and 15 years of age is no longer at risk of
being reported and prosecuted in terms of the SOA. Therefore health
providers do not have to report such cases in terms of section 54 of
the SOA. The health provider consulting with a 12-year-old patient
is similarly no longer at risk of prosecution for failing to report
knowledge of the sexual acts of this particular patient.
It is important to note that the effect of the amendments does
not mean that the lawmakers have lowered the age of consent to
sex to 12 years. The age of sexual consent is still 16. However, the
amendment creates an exception to the offences so as not to catch
adolescents in the net of a prohibition which is generally aimed
at protecting children against adult perpetrators. This would be in
accordance with the CC order.
The lawmakers have effectively changed the legal position around
16- and 17-year-olds. The SOA required that a 16- and 17-year-old who
engaged in sexual activity with an adolescent be reported (whether
they committed sexual penetration or a sexual violation). It was up
to the prosecutor to decide whether or not to prosecute and they
would have had to take into account the age-gap defence (in respect
of a sexual violation only) in that decision. However, in terms of the
new amendments the 16- and 17-year-old need only be reported if
he or she engaged in sexual activity with an adolescent who is more
than two years younger (whether it was an act of sexual penetration
or a sexual violation). What this means is that, for example, a 17-year-
old who has consensual sex with a 13-year-old and impregnates
her commits an offence because there is more than two years age
gap between these parties. The 17-year-old must be reported for
committing a sexual offence if the health worker becomes aware of
this. However, if a 16-year-old impregnates a 15-year-old as a result of
consensual intercourse then the 16-year-old has not committed an
offence at all (in terms of the exception created by the Amendment)
and no report is required.
There are areas of the sexual offences law that the Amendment
Act does not attempt to change. The reporting obligations are not
directly addressed by the Amendment Act and will continue to
operate as it is currently set out in the SOA. The differential treatment
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6 November 2015, Vol. 8, No. 2 SAJBL
between 16- and 17-year-olds and adolescents was not an issue dealt
with by the CC so the legislature has also left that divide between
categories of children intact in the Amendment Act. The CC made it
clear that the law must fulfil its primary function, which is to protect
children from adult predators and that is why they suspended the
order of invalidity. In response the lawmaker has kept the general
prohibition against adults intact so if the health provider is aware of
a child patient engaged in sexual activity with an adult (18 years or
older) that adult has still committed a criminal offence that will have
to be reported. Despite changing the legal position of the adolescent
the Amendment Act does not seek to change the position in the
principal Act that if anyone (including an adolescent) engages in
sexual activity with a child below 12 years of age, it constitutes an
offence which requires reporting.
Conclusion
The CC judgment has been commended for protecting children’s
rights.[9] The task of the lawmakers was to ensure that they drafted
a law in line with the CC judgment. These new SOA amendments
received much support from various civil society organisations when
they were being discussed during the public hearings. [10] The drafters
of this Amendment Act would therefore be commended for eectively
decriminalising sexual activity between adolescents in accordance
with the CC judgment. It would get additional praise for proactively
improving the position of the 16- and 17-year-old who is engaged in
consensual sexual conduct with an adolescent by limiting the oence
and reporting obligation to when the adolescent is more than two
years younger than the 16- or 17-year-old. This amendment could
certainly be said to have gone beyond the scope of the order made by
CC but should further operate to create less intrusion into the sexual
autonomy of the consenting adolescent while at the same time still
maintaining an avenue for prosecution – if the much older child unduly
inuences the much younger adolescent to engage in sexual acts.
References
1. Teddy Bear Clinic for Abused Children and Another v Minister of Justice and
Constitutional Development and Another 2014(2) SA 168 (CC).
2. Republic of South Africa. Criminal Law (Sexual Oences and Related Matters)
Amendment Act Amendment Bill. [B18-2014]. Pretoria: Government Printer, 2014.http://
www.parliament.gov.za/live/commonrepository/Processed/20150302/594925_1.pdf
(accessed 5 August 2015).
3. Acting Speaker of the National Assembly v Teddy Bear Clinic for Abused Children
and Another [2015] ZACC 16
4. Republic of South Africa. Criminal Law (Sexual Oences and Related Matters)
Amendment Act Amendment Act 5. Government Gazette no. 38977 2015.
Pretoria: Government Printer, 2015.
5. Mahery P. Reporting sexual oences involving child patients: What is the current
law following the Constitutional Court judgment? S Afr J BL 2014;7(1):26-29.
[http://dx.doi.org/10.7196/sajbl.303]
6. McQuoid-Mason D. The Teddy Bear Clinic Constitutional Court case: Sexual
conduct between adolescents consenting children aged under 16 years
decriminalised and a moratorium on the reporting duties of doctors and others.
S Afr Med J 2014;104(4):275-276.
7. Republic of South Africa. Constitution of the Republic of South Africa, Sections 12
and 13 of 1996. Pretoria: Government Printer 1996.
8. Republic of South Africa. Children’s Act No. 38 of 2005. Pretoria: Government
Printer 2005.
9. Buthelezi MC, Bernard RB. The court knows the law. J S Afr Law 2014;3:625-639.
10. Community Law Centre, University of the Western Cape and Centre for Justice
and Crime Prevention. Submission to the Portfolio Committee on Justice and
Correctional Services on the Criminal Law (Sexual Oences and Related Matters)
Amendment Act Amendment Bill 3. Cape Town: University of the Western Cape.
2015. Pretoria: Government Printer 2015.
