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Summary: The South African High Court has struck down laws criminalising consensual sexual acts between 12 and 16 year olds.
[15 January 2013] Laws that make consensual sex between teenagers a crime are unconstitutional, a high court found on Tuesday. The Criminal Law (Sexual Offences and Related Matters) Amendment Act had been widely condemned as absurd and unenforceable. It makes it a criminal offence for children between the ages of 12 and 16 to have sex — even when they consented to it. It also makes consensual kissing, and even cuddling, an offence if there is an age difference of more than two years between the children. Last year, the Teddy Bear Clinic and Rapcan challenged the act in court, arguing that instead of protecting children, the effect of the law was to traumatise them by exposing them to the criminal justice system. They put surveys before the court that showed that up to 80 per cent of children between 12 and 16 have kissed, up to 33.8% have engaged in heavy petting, and up to 26% have had sexual intercourse. The act also says anyone who sees teenagers of certain ages kissing must report it or be guilty of an offence. In his judgment, Judge Pierre Rabie said it was clear that "sexual violation" was defined so broadly in the act that it "includes conduct (such as kissing and light petting) that virtually every normal adolescent participates in at some stage or another". "There can be no doubt that the impugned provisions as they stand, infringe a range of constitutional rights of children," he said. Judge Rabie said to subject "intimate personal relationships to the coercive force of the criminal law" was to "insert state control into the most intimate area of adolescents’ lives". Any legislation that did so should be "carefully and narrowly crafted to infringe on these vital constitutional rights as little as possible". In this case, the act was overly and unjustifiably broad, he said. However, Judge Rabie tailored his order carefully, so that it would still be a crime when the sexual conduct was between adults and children, or where it was not consensual. The judgment must now be confirmed by the Constitutional Court. Further information: