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Kenya Law / Blog / Case Summary: Constitutional Court of South Africa declares sections 15 and 16 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act invalid only to the extent that they criminalise consensual sexual conduct between adolescents

Constitutional Court of South Africa declares sections 15 and 16 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act invalid only to the extent that they criminalise consensual sexual conduct between adolescents

The Teddy Bear Clinic for Abused Children and Another v Minister of Justice and Constitutional Development and National Director of Public Prosecutions

CCT 12/13

KHAMPEPE J (Mogoeng CJ, Bosielo AJ, Froneman J, Jafta J, Mhlantla AJ, Nkabinde J, Skweyiya J and Zondo J concurring)

3 October 2013

 

Introduction

This was an application for confirmation of a ruling by the North Gauteng High Court, Pretoria (High Court) that certain provisions of the Criminal Law (Sexual Offences and Related Matters) Amendment Act relating to the criminalisation of consensual sexual conduct with children of a certain age were constitutionally invalid. In terms of section 172(2)(a) of the Constitution, the High Court’s ruling had no force unless and until confirmed by the Constitutional Court.

 

At the outset it is important to emphasise what this case is not about. It is not about whether children should or should not engage in sexual conduct. It is also not about whether Parliament may set a minimum age for consensual sexual conduct. Rather, the Court was concerned with a far narrower issue: whether it is constitutionally permissible for children to be subject to criminal sanctions in order to deter early sexual intimacy and combat the risks associated therewith.

 

Brief Facts

 

The first applicant and second applicants were not-for-profit company’s, dedicated to the prevention of child victimisation and the promotion of children’s rights, which they do by, amongst other things, developing best practices in relation to child victims and witnesses in the criminal justice system and by advocating legal and policy reforms to protect children from abuse, exploitation and neglect.

 

In the High Court, the applicants argued that, on the common-cause evidence before the Court, the impugned provisions of the Sexual Offences Act infringed on children’s constitutional rights to dignity, privacy and bodily and psychological integrity, as well as their right in terms of section 28(2) of the Constitution to have their best interests treated as being of paramount importance in all matters concerning them. They contended that these infringements could not be justified in terms of section 36 of the Constitution because the expert evidence tendered demonstrated that the provisions were not rationally related to their stated purposes, and because less restrictive means could have been employed by the state to achieve those purposes.

 

In the Constitutional Court the applicants argued that sections 15 and 16 of the Act unjustifiably infringed children’s constitutional rights to dignity, privacy and bodily and psychological integrity, as well as the principle in section 28(2) of the Constitution that a child’s best interests must be of paramount importance in all matters concerning the child.  They therefore submitted that the order of the High Court should be confirmed.  The respondents argued that the sections did not infringe the constitutional rights of children and were rationally related to the legitimate government purpose of protecting children from the risks associated with engaging in sexual activity.

 

 

While the NDPP elected to abide the decision of the High Court, the Minister actively opposed the declaratory relief sought by the applicants.

The High Court (per Rabie J) upheld the applicants’ challenge and ruled that the impugned provisions violated all of the rights cited.

 

 

Issues for determination

  1. Whether  sections 15 and 16 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act were inconsistent with the Constitution insofar as they imposed criminal liability on children for engaging in consensual sexual conduct
  2. Whether any fundamental rights were limited by the impugned provisions
  3. Whether the limitations were reasonable and justifiable in terms of section 36 of the Constitution
  4. What was the appropriate remedy in the circumstances

 

 

Section 15 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act deals with the offence of “statutory rape”:

Acts of consensual sexual penetration with certain children (statutory rape)

15 (1) A person (‘A’) who commits an act of sexual penetration with a child (‘B’) is, despite the consent of B to the commission of such an act, guilty of the offence of having committed an act of consensual sexual penetration with a child.

(2) (a) The institution of a prosecution for an offence referred to in subsection (1) must be authorised in writing by the National Director of Public Prosecutions if both A and B were children at the time of the alleged commission of the offence: Provided that, in the event that the National Director of Public Prosecutions authorises the institution of a prosecution, both A and B must be charged with contravening subsection (1).

(b) The National Director of Public Prosecutions may not delegate his or her power to decide whether a prosecution in terms of this section should be instituted or not.”

Section 16 of the Act imposes criminal liability for committing “statutory sexual assault

 

Acts of consensual sexual violation with certain children (statutory sexual assault)

16 (1) A person (‘A’) who commits an act of sexual violation with a child (‘B’) is, despite the consent of B to the commission of such an act, guilty of the offence of having committed an act of consensual sexual violation with a child.

(2) (a) The institution of a prosecution for an offence referred to in subsection (1) must be authorised in writing by the relevant Director of Public Prosecutions if both A and B were children at the time of the alleged commission of the offence: Provided that, in the event that the Director of Public Prosecutions concerned authorises the institution of a prosecution, both A and B must be charged with contravening subsection (1).

(b) The Director of Public Prosecutions concerned may not delegate his or her power to decide whether a prosecution in terms of this section should be instituted or not.

Section 36 of the Constitution allows the rights listed to be limited only by laws of general application, and only to the extent that the restriction is reasonable and justifiable in “an open and democratic society based on human dignity, equality and freedom.

 

Held:

1. The criminalisation of consensual sexual conduct was a form of stigmatisation which was degrading and invasive. In the circumstances of the case, the human dignity of the adolescents targeted by the impugned provisions was clearly infringed. If one’s consensual sexual choices are not respected by society, but are criminalised, one’s innate sense of self-worth will inevitably be diminished. Even when such criminal provisions are rarely enforced, their symbolic impact had a severe effect on the social lives and dignity of those targeted. Sections 15 and 16 criminalise a wide range of consensual sexual conduct between children: the categories of prohibited activity are so broad that they include much of what constitutes activity undertaken in the course of adolescents’ normal development. There could also be no doubt that the existence of a statutory provision that punishes forms of sexual expression that are developmentally normal degrades and inflicts a state of disgrace on adolescents. The stigma attached to adolescents by the impugned provisions is manifest. The limitation of section 10 of the Constitution is obvious and undeniable.

 

2. An individual’s human dignity comprises not only how he or she values himself or herself, but also includes how others value him or her. When that individual is publicly exposed to criminal investigation and prosecution, it is almost invariable that doubt will be thrown upon the good opinion his or her peers may have of him or her.

 

3. The stigma of criminalisation was exacerbated by the provisions in section 41 of the Sexual Offences Act mandating that the name of any person who commits an offence in terms of sections 15 and 16 be placed on the Register. If a person’s particulars were recorded in the Register in connection with a sexual offence against a child, a number of adverse consequences follow. The person may not be employed to work with a child; may not hold any position which places him or her in authority, supervision or care of a child; and may not become a foster parent or an adoptive parent. The relevant provisions of section 41(1) are clearly and laudably aimed at protecting children from adult sexual predators. However, this goal would not be achieved by the inclusion in the Register of the details of adolescents who have engaged in consensual sexual penetration or sexual violation. To prevent an adolescent from meaningfully interacting with children in the future purely because that adolescent engaged in what may be developmentally normal sexual conduct constitutes a significant limitation of his or her right to dignity.

 

4. The criminal offences under sections 15 and 16 of the Sexual Offences Act applied to the most intimate sphere of personal relationships and therefore inevitably implicated the constitutional right to privacy. The offences allowed police officers, prosecutors and judicial officers to scrutinise and assume control of the intimate relationships of adolescents, thereby intruding into a deeply personal realm of their lives. That intrusion was exacerbated by the reporting provisions: trusted third parties are obliged by section 54 of the Sexual Offences Act to disclose information which may have been shared with them in the strictest confidence, on pain of prosecution.

 

5. The rights in the Bill of Rights are not discrete silos, each protecting a set of interests that is neatly categorised and absolutely divided along sharp, bright lines. Rather, there are levels of interconnectedness that must be acknowledged in any constitutional analysis. This is certainly the case in relation to human dignity and privacy. Privacy fosters human dignity insofar as it is premised on, and protects, an individual’s entitlement to “a sphere of private intimacy and autonomy”. To the extent that they encroach on the right to privacy, sections 15 and 16 constitute a related limitation of adolescents’ dignity rights

 

6. Section 28(2) of the Constitution provides that “a child’s best interests are of paramount importance in every matter concerning the child.” It is trite that section 28(2) is both a self-standing right and a guiding principle in all matters affecting children. What is in the best interests of a child is a balancing exercise and in each case various factors need to be considered

 

7. The best-interests principle applies in circumstances where a statutory provision is shown to be against the best interests of children in general, for whatever reason. As a matter of logic what is bad for all children will be bad for one child in a particular case. Thus, if there is evidence that exposing children to the criminal justice system for engaging in consensual sexual behaviour has a negative impact on them generally, then a court may declare the scheme to be contrary to the best interests of the child in terms of section 28(2), and therefore invalid.

 

8. The prospect of diversion cannot save the impugned provisions. If the adolescent charged under section 15 or section 16 was ultimately diverted from the formal criminal justice system, he or she might still be arrested and forced to interact with arresting and investigating police officials. If the adolescent was to avoid a formal criminal trial, he or she ought to acknowledge responsibility for the offence to a magistrate. The acknowledgement is made during inquiry or trial proceedings at which various people might be in attendance, including the adolescent’s guardian, the relevant probation officer and the prosecutor. The adolescent would not only experience these interactions with various institutions of state, but in the course thereof would be forced to disclose and have scrutinised details of his or her intimate affairs and all because he or she engaged in developmentally normative conduct.

 

9. In principle, and as this Court has made plain, the existence of prosecutorial discretion cannot save otherwise unconstitutional provisions. If the discretion to prosecute exists, the prospect of an adolescent being arraigned under the impugned provisions is ever-present. Any such prosecution would invariably infringe the best-interests principle, as well as the affected adolescent’s rights to privacy and human dignity. The mere existence of a prosecutorial discretion creates the spectre of prosecution, which undermine adolescents’ rights. Furthermore, the discretion cited by the respondents only occurs at the stage of deciding whether to prosecute, by which time the adolescent involved may already have been investigated, arrested and questioned by the police. In any event, while the arguments in relation to prosecutorial discretion may be relevant when considering the extent of the limitation of section 28(2) of the Constitution, they are irrelevant when considering whether the right has been limited at all.

 

10. The younger child is thought to require protection from the older child. We know from the record that the Legislature’s rationale for the close-in-age exemption in section 56(2)(b) being restricted to two years was that the greater the age gap between the participants in sexual conduct, the more likely it is that the older child may have unduly influenced the younger child. However, prosecuting the younger child in these circumstances along with the older child is irrational. It simply does not make sense to reason that the younger the child or the greater the age gap between the children involved, the stronger the requirement to prosecute the younger child, particularly when the purpose behind the statutory provision is the protection of the younger child

 

11. Sections 15 and 16 of the Sexual Offences Act are contrary to the best-interests principle and have the effect of harming the adolescents they are intended to protect. It is fundamentally irrational to state that adolescents do not have the capacity to make choices about their sexual activity, yet in the same breath contend that they have the capacity to be held criminally liable for such choices. Importantly, the right in terms of section 28(2), like the rights to human dignity and privacy, is not inviolable and is subject to justifiable limitation to the extent that section 36 of the Constitution permits.

 

Order

The following order was made:

The order of the North Gauteng High Court, Pretoria was set aside and replaced by the following:

1. Sections 15 and 16 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 (Act) are declared inconsistent with the Constitution and invalid to the extent that they impose criminal liability on children under the age of 16 years.

2. The declaration of invalidity is suspended for a period of 18 months from the date of this judgment in order to allow Parliament to correct the defects in the light of this judgment.

3. From the date of this judgment, a moratorium is placed on all investigations into, arrests of, prosecutions of, and criminal and ancillary proceedings against children under the age of 16 years in relation to sections 15 and 16 of the Act, pending Parliament’s correction of the defects in the Act.

4. The Minister of Justice and Constitutional Development is required to take all steps necessary to ensure that, when a court has convicted a child under the age of 16 years of an offence referred to in sections 15 or 16 of the Act or issued a diversion order following a charge under those provisions, the details of the child will not appear in the National Register for Sex Offenders and a certificate of expungement is issued directing that the conviction and sentence or diversion order of such child be expunged.

5. The respondents are ordered to pay the applicants’ costs, including the costs of two counsel, in the High Court and in this Court.

 

A “close-in-age” defence is available to a child who has been charged with statutory sexual assault, but not to a child who has been charged with statutory rape. In terms thereof, it is a valid defence for the accused child “to contend that both the accused persons were children and the age difference between them was not more than two years at the time of the alleged commission of the offence.” Because the close-in-age defence is located in section 56 of the Sexual Offences Act (which has the same definition of “child” as the Constitution), it seems that the defence is available to persons under the age of 18 years. If sexual violation has been committed and the parties have an age difference of more than two years between them, no defence lies. In other words, if a 12-year old and 15-year old engage in kissing or petting or mutual masturbation, both commit an offence in terms of section 16. Furthermore, if the 15-year old is prosecuted, the 12-year old must be prosecuted too, and neither may claim the close-in-age defence.

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