It is difficult not to pay attention to what appears to be an ever-increasing problem of learner pregnancies. The issue came before the Constitutional Court earlier this year in two cases in which school governing bodies adopted policies excluding pregnant learners from school for extended periods, ostensibly in the interests of their health and education, but more likely as a moral judgment on their conduct.

So what do we do about this? Do we make condoms freely available in schools? Do we provide comprehensive sex education to learners to allow them to make more informed decisions about their sexual activities? Do we criminalise these sexual activities?

On Thursday, the Constitutional Court heard the case of Teddy Bear Clinic for Abused Children and another v Minister of Justice and Constitutional Development. This case involves a challenge to provisions in the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 (the Act) that criminalises consensual sexual activity, including kissing, between children between the ages of 12 and 16. The Act further requires than anyone who is aware of any sexual activity between teenagers of this age is under a legal obligation to report this to the police.

Earlier this year, the North Gauteng High Court declared the relevant provisions inconsistent with the Constitution and invalid. The Constitutional Court will decide after Thursday’s hearing whether to confirm that declaration of invalidity. The case has been opposed, and as a result there is much debate on whether consensual sexual activity between teenagers should be criminal

In arguing that the criminalization of consensual sex between teenagers does not violate children’s rights, counsel for the Department of Justice and Constitutional Development rejected evidence indicating that it is healthy for teenagers to start to experiment, contending that if they are in fact engaging in any kind of sexual conduct, their parents and communities have failed them. He suggested that rather than an innate desire to engage in sexual conduct, children’s experimentation is learned. And, presumably, that it can be unlearned through harsh criminal sanctions. Indeed, at one stage, counsel defending the criminalization of consensual teen sex, in response to submissions that teens are acting on healthy desires, suggested that these desires are “social ills”, to be addressed through criminalization as we do with cases of non-consensual sexual activities.

In responding to this, I find it necessary to distinguish consensual sexual activity between teenagers between 12 and 16 years of age from other  scenarios:

• Decriminaising consensual sex between teenagers does not decriminalise non-consensual sex between two people. All cases of non-consensual sex constitute rape and all cases of other non-consensual sexual activity constitute sexual assault. These acts can never be condoned.

• Decriminalising consensual sex between teenagers does not alter the law on sexual activity between an adult and a minor, regardless of consent. The offences of statutory rape and statutory sexual assault will still apply.

• Decriminalising consensual sex between teenagers does not render lawful sexual relationships between teachers and learners, which are specifically prohibited under our law and constitute mandatory grounds for dismissal of a teacher.

What decriminalizing sex between teenagers does do, though, is it opens up access to support that teenagers need to come to terms with their sexuality, to learn to practice safe sex, and to protect themselves from HIV, STIs and pregnancy. It encourages these teenagers to be open about their sexual activity, to make informed choices about whether to engage in sexual activity, and, if they choose to have sex, to do so responsibly.

Children over the age of 12 can give consent for and HIV test, without the knowledge of their parents if they so choose. They will not give consent if this will result in criminal charges against them.  Children over the age of 12 can also access condoms to practice safe sex. They will not do so if asking for a condom means confessing to a crime.

Children over the age of 12 can and should be encouraged to report a case of rape. They will not do so if unsuccessful prosecution would open them up to prosecution for engaging in sexual activity under the age of 16. Arguments were raised in court that consensual sex between teenagers creates an environment for abuse to thrive. I would argue the opposite, that openness about consensual sex between teenagers encourages reporting of abuse and co-operation with the subsequent investigations.

To be clear, this does not mean that sex between teenagers under the age of 16 is something to be encouraged. No one is arguing that. Decriminalising sexual activity between consenting teenagers, however, encourages them to act responsibly.

The truth is that teenagers are having sex. And many of them will probably continue to do so whether or not it is against the law. Our choice is not between teenagers having sex and teenagers not having sex. Our choice is between allowing teenagers to have sex without the support that we can offer them, or assisting them in accessing what they need.

This includes educating our children about what they feel, how they can act on it responsibly, what the consequences may be and how they can protect themselves from risks. This is not a once-off awkward sex education discussion at home or at school. It requires sustained involvement from home, school, community and public broadcasters.

It is our responsibility to talk to children openly about sex and sexuality, to make them aware that they have choices and to place the power and responsibility in their hands. Teenage girls in particular must be empowered so that they are able to respect themselves and to stand up against sex being used against them in an abuse of power by their teachers, their families and people in their communities.

The first step towards doing this is to remove the denial and the stigma. The only way we will ever be able to talk about these issues is if we open them up for discussion. And the only way to do that is to ensure that a discussion that needs to be had in the context of trust, honesty and mutual respect will not result in criminal charges. DM