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Summary: High court hears that laws that criminalise consensual sexual activity between teenagers are too broad, and could even ban hugging.
[24 April 2012] - Laws that criminalise consensual sexual activity between teenagers are unconstitutional, a high court heard yesterday. Children’s rights organisations, the Teddy Bear Clinic for Abused Children and Rapcan said the Criminal Law (Sexual Offences and Related Matters) Amendment Act was so broad that "it includes conduct … that virtually every normal adolescent participates in at some stage or another". The act, defended in court yesterday by the justice minister and the national director of public prosecutions, makes it a crime for teenagers of the same age to have sex, even if they have both consented. The law also makes it a crime for certain ages to kiss, and even to cuddle with all their clothes on. Horror stories of child rape and sex between young girls and sugar daddies have been reported lately in the media. However, the Teddy Bear Clinic and Rapcan told the North Gauteng High Court yesterday that these instances of criminal conduct were not what they were taking issue with. Their counsel, Steven Budlender, said the arguments of non-constitutionality were limited to consensual sexual contact between children aged 12-16. Some of the surveys put before the court yesterday showed that up to 80 per cent of children between 12 and 16 have kissed, up to 33.8 per cent have engaged in heavy petting, and up to 26 per cent have had sexual intercourse. Mr Budlender said that instead of protecting children, the effect of the law was to traumatise them — by exposing them to the criminal justice system. It caused emotional distress in the form of shame, embarrassment, anger and regret and prevented them from seeking help because they feared being charged with a crime. The act "will isolate adolescents from potentially supportive resources and systems by creating shame and stigma", he said. Insofar as it prohibited the consensual sexual conduct of adolescents, the act breached the rights of children to dignity and to freedom and breached the constitutional injunction that in all matters concerning children, "a child’s best interests are of paramount importance". Nor were the limitations justifiable because they were not rationally related to the purpose they sought to achieve, he said. The purpose of the act could also be achieved by much less intrusive means. Counsel for the minister of justice and the national director of public prosecutions, Lindi Nkosi-Thomas SC, said the state was entitled to set parameters for citizens to act in. The Teddy Bear Clinic and Rapcan were advocating a "free-for-all regime for adolescents" that was "not in the children’s best interests", Ms Nkosi-Thomas said. The proper way to read the act was in conjunction with other laws on children, especially the Children’s Act and the Child Justice Act, which tried at all costs to keep children out of the criminal justice system. Mr Budlender said while the Child Justice Act might ameliorate to some extent the trauma, even in the best-case scenario children would have to deal with the criminal justice system for a "significant" time and still have to talk about intimate details in front of parents, probation officers and magistrates. The case continues today. Further Information: