Teen sex: The law can’t replace parenting
- Pierre de Vos
- 10 Oct 2013 12:27 (South Africa)
In one of his most famous poems, the late English poet laureate Phillip Larkin (who never had any children himself) wrote:
“They fuck you up, your mum and dad./ They may not mean to, but they do./ They fill you with the faults they had/ And add some extra, just for you.
But they were fucked up in their turn/ By fools in old-style hats and coats,/ Who half the time were soppy-stern/ And half at one another's throats.”
Larkin, I take it, wanted to make the point that parents are not always well-equipped to guide their children into a well-adjusted adulthood. This is so because parents are often not particularly wise or well-adjusted: they may harbour old resentments from their own difficult childhoods and may carry with them some of the prejudices, blind-spots and insecurities inherited from their own parents. It is especially when children disappoint their parents by developing their own distinctive personalities – when they refuse to fulfil their parents’ dreams and expectations and act like the unique human beings that they are, with a will and personality of their own – that some parents lose the plot.
This may also be the case in matters relating to sexuality: some parents who themselves may be deeply ambivalent about sex (enjoying it but also half-believing that sex is potentially shameful) may find it hard to talk to their teenage children about sex. Such parents may well hope that the threat of criminal sanction would force their adolescent children to ignore their own developing sexual feelings and would stop their children from exploring their budding sexual feelings. Instead of reflecting on their own inherited attitudes about parenting and the manner in which their personal moral views might come in the way of raising their children to become well-adjusted and happy adults, they pin their hopes on the criminal law to absolve them of responsibility for the proper rearing of their children.
The hopes of such parents were dashed last week when the Constitutional Court, in a unanimous judgment authored by Sisi Khampepe, declared invalid sections 15 and 16 of the Sexual Offenses Act in Teddy Bear Clinic for Abused Children and Another v Minister of Justice and Constitutional Development and Another.
The impugned sections criminalise consensual sexual intercourse between adolescents (between 12 and 16 ears of age) as well as other forms of physical contact between adolescents including petting, kissing and hugging. The Act states that in such cases both of the adolescents involved had to be prosecuted. The Act provides for a “close-in-age” defence to an adolescent who had been charged with petting, kissing and hugging, but not to an adolescent who had been charged with sexual intercourse with another adolescent. This means that where both the adolescents were children “and the age difference between them was not more than two years at the time of the alleged commission of the offence” they could not be prosecuted – but only in cases of petting, kissing and other non-intercourses related sexual contact.
The Constitutional Court found that these provisions infringed on the right of adolescents to dignity, privacy and the right to have their best interests treated as being of paramount importance.
Its findings were premised on the assumption “that children enjoy each of the fundamental rights in the Constitution that are granted to ‘everyone’ as individual bearers of human rights”. The Court views children as individuals – not as mere extensions of their parents – and the judgment therefore affirmed the need to value the choices that children make.
This means that children, too, must be treated like human beings, not merely like creatures on their way to acquiring free will and the status of fully human being. In discussing the right of children to have their dignity respected and protected, the Court affirmed that the dignity of a child is of special importance “and are not dependent on the rights of their parents”. The exercise by children of their dignity rights is not “held in abeyance until they reach a certain age”. This is so because:
“If a child is to be constitutionally imagined as an individual with a distinctive personality, and not merely as a miniature adult waiting to reach full size, he or she cannot be treated as a mere extension of his or her parents, umbilically destined to sink or swim with them…. Individually and collectively all children have the right to express themselves as independent social beings, to have their own laughter as well as sorrow, to play, imagine and explore in their own way, to themselves get to understand their bodies, minds and emotions, and above all to learn as they grow how they should conduct themselves and make choices in the wide social and moral world of adulthood.”
If you accept that children are also entitled to enjoy the right to have their dignity respected and protected, it must be clear that the criminalisation of consensual sexual conduct of children infringes on this right. It “is a form of stigmatisation which is degrading and invasive”.
“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 has a severe effect on the social lives and dignity of those targeted.”
This is especially so because sections 15 and 16 of the Act 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 can 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. To my mind, therefore, the stigma attached to adolescents by the impugned provisions is manifest. 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.”
The Court employed similar reasoning to find that section 15 and 16 infringed on the right to privacy of affected adolescents and their right to have their best interests treated as being of paramount importance.
After all, the right to privacy is closely related to the notion of dignity as it recognises that we all have a right to a “sphere of private intimacy and autonomy which allows us to establish and nurture human relationships without interference from the outside community”.
“The way in which we give expression to our sexuality is at the core of this area of private intimacy. If, in expressing our sexuality, we act consensually and without harming one another, invasion of that precinct will be a breach of our privacy.”
The criminalisation of adolescent sexual activity would allow 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”.
In my view these passages serve as an important “teaching moment” for parents. They challenge parents to form a closer and more authentic bond with their children, challenge them to listen to their children but also to guide them. The judgment asks parents not to treat children in an overly paternalistic manner and not as the property of parents or the state, but as individuals with unique needs and an ability to develop into well-adjusted adults - if only their caring parents, who respect their individuality, provide appropriate guidance to them.
This does not mean that anything goes. There may be legitimate reasons for limiting a child’s fundamental rights in particular circumstances, due to the stage of his or her development and in order to protect him or her. Legislation that infringes on the child’s right to dignity, privacy and the like could be justified in terms of the limitation clause if this limitation was reasonable. Such legislation would be reasonable if it genuinely protected children from harm and – in the present case – from the risks (including the risks of teenage pregnancy and psychological harm) associated with inappropriate sexual experimentation for which particular adolescents might not be prepared.
But the state had not provided the court with any evidence that the criminalisation of sexual activity between adolescents would in fact protect teenagers from harm. The expert evidence before the Court demonstrated that it was potentially healthy for teenagers to explore their sexuality, as long as such exploration was “conducted in ways for which the individual is emotionally and physically ready and willing.”
“What is of utmost importance is ensuring that children are appropriately supported by the adults in their lives, to enable them to make healthy choices. This is particularly so given the awkwardness and embarrassment children often feel when discussing sexual relations with adults. If children are not made to feel that there are safe environments within which they can discuss their sexual experiences, they will be stripped of the benefit of guidance at a sensitive and developmental stage of their lives.”
The impugned provisions did nothing of this sort. In fact the Court found that these provisions would exacerbate harm and risk to adolescents by undermining support structures, preventing adolescents from seeking help and potentially driving adolescent sexual behaviour underground. Moreover, the Act placed a duty on anyone to report contraventions of the Act to the Police, which would make adolescents less likely freely to communicate about sexual relations with parents and counsellors. These reporting provisions “create a rupture in family life and invite a breakdown of parental care by severing the lines of communication between parent or guardian and child”.
The criminal law is a drastic tool to address problems associated with inappropriate sexual activity of children. Children could be imprisoned because they engaged in heavy petting or kissing or in sexual intercourse. This they could have done because they were indeed emotionally ready to engage in the activity or because their parents had not guided them appropriately to make correct choices about their sexual development. The provisions would potentially expose children to trauma and to the harsh effects of the criminal justice system. And while the Court does not say so, this might occur because of the absence of appropriate guidance and advice by parents too ashamed to talk to their children about sex or too reliant on the criminal law to do the parenting on their behalf.
In this case the state provided no evidence that the criminalisation of adolescent sexual activity would actually serve the purpose of protecting children from the physical and psychological risks of inappropriate sexual experimentation. While caring guidance from parents would empower adolescents to make the correct choices about their sexual development, it is unclear how the enforcement of the criminal law would achieve the same result. As the Court pointed out:
“We have before us no evidence at all to demonstrate that adolescents may be deterred by sections 15 and 16 from engaging in sexual conduct and thus avoid the risks associated with engaging in sexual activity at a young age. Rather, the evidence we do have before us is to the contrary. It shows that the impugned provisions increase the likelihood of adolescents participating in unsafe sexual behaviour and therefore actually increase the materialisation of the associated risks.”
Where legislation cultivates a society in which adolescents are precluded from having open and frank discussions about sexual conduct with their parents and caregivers they would be put at more risk and would not be protected at all. Rather than deterring early sexual intimacy, the provisions merely drive it underground, far from the guidance that might otherwise be provided by parents, guardians and other members of society.
The evidence put before the Court also indicated that the criminalisation of adolescent sexual activity would in fact disempower caregivers and institutions in dealing with adolescents. This is so because parents and caregivers cannot promote behaviour that the provisions have deemed illegal and further because, in the course of attempting to provide guidance and assistance, they may well be told intimate information which they will be obliged to report to the authorities.
The judgment serves as a clarion call to parents to prove Phillip Larkin wrong, to demonstrate that they are willing to treat their children like human beings, that they are parents who are capable of learning from their parents’ mistakes and that they care enough about their children not to try and outsource their parenting to the criminal justice system. DM
- Freedom of hate speech? No, thanks.
- With Mbete and Modise not protecting the Parliament, who will protect our democracy?
- SONA2015: The legal side of the Moon
- SONA: Can the EFF be prevented from questioning the president?
- De Kock: The blood is not on his hands alone
- Xenophobia and the remnants of Apartheid: The terrible twosome
- The DA’s SMSes: Judgment Day, and its likely impact
- Freedom of Speech, Limited
- Turmoil at the Hawks: A birds eye view of the legalities
- The surrealism of Key Point secrecy
- The fight against corruption: In human hands alone
- Constitution is clear: President must answer questions in Parliament
- Nkandla and the National Assembly: Little more than a sideshow
- Tough luck, Mr Hofmeyr
- Death penalty: It’s not even the beginning of a solution
- The powers of the Public Protector: What the High Court actually found
- When some rights are more equal than others
- Afriforum, jou ma: Who’s likely to win the ‘Larney’ battle?
- Spy tapes: Still no reason to drop charges
- How now, Ad Hoc Nkandla Committee?
- The Speaker's dilemma
- The President’s reply to Public Protector: Why it won’t hold water
- Pistorius and dolus eventualis: do the facts support the finding?
- Affirmative action: It’s simpler than you think
- EFF vs. the National Assembly: Where to now?
- Nkandla: Zuma’s convoluted series of Houdini moves
- Nkandla: That drinking-thinking
- Women’s month, beyond lip service
- The multiplicity of freedom
- Home Affairs vs The Constitution
- Hlaudi weather: The fog is even thicker than it looks
- Wishful thinking: If the public protector were helped to do her job
- White, Afrikaans universities – when will they truly transform?
- NPA crisis: Open warfare was just the beginning
- Censoring Malema: Tempting, perhaps, but not legally valid
- Tlakula: Stark truth, stark choice
- The law vs. religion: Let’s try that again
- Evictions: 0 out of 10, SANRAL – try again
- Gay Cabinet ministers: So what’s the big deal?
- Rights and law: The untold, human stories
- Nkandla report in court: Zuma's interest above the law
- Democracy: let the real work begin
- May the Seventh be with You
- Critical thinking: the vital sign more important to democracy than your vote
- Elections: How can we level the playing field?
- Oscar’s ‘involuntary action’: Thin ice, Mr Pistorius
- That Nkandla SMS: Why the ANC won’t have its way in court
- The unbearable lightness of being a Nkandla Report critic
- Nkandla – unlawful to the last
- The president and Nkandla: No ignorance, no bliss
- The Public Protector’s Report: Who’s got the power and what is at stake?
- Why EFF election challenge would not fly
- Pistorius and that controversial Twitter ruling: questionable at best
- Uganda: why quiet diplomacy is a devastating betrayal of gay men and lesbians on the continent
- All hail independent thought
- Pistorius on TV: The public's interest vs. the public interest
- In the age of consent, the buck stops with Number One
- DA vs. ANC: The importance of political tolerance
- Campaign fever: the ground rules
- Let’s talk about freedom of speech
- DAgang's divorce: The finer sticking points
- Challenging IPID’s appointment: Always a bridesmaid, never a McBride
- Democratic internal party processes? Hmmm, unlikely.
- Why redress measures are not racist
- News flash, folks: discrimination IS illegal
- Water is life, but the struggle for it is deadly
- Changing the Constitution: much ado about nothing
- Mandela legacy: Reconciliation – a process, not a once-off event
- To call Mandela a saint is to dishonour his memory
- Love me tender: Why ‘it’s complicated’ applies to corrupt private tender processes too
- Nkandla report - the incontrovertible facts no smokescreens can cover
- The colonial roots of conferring silk on advocates
- Structural racism: the invisible evil
- E-toll civil disobedience reveals lack of respect for democracy
- We recognise sex and gender as classifications, so why not race?
- Nkandla Report blackout: It is all about PW Botha's law
- Elections are coming: Can we have some substance, please?
- The JSC: It’s not all bad, and here’s why
- The remembrance and forgetting of things past
- Nkandla: Untangling that rather sticky web
- Employment equity: the trick is in how it’s implemented
- Justice: that elusive prize, and how to get it
- Elections: The tightrope of fairness
- Teen sex: The law can’t replace parenting
- The Hlophe conundrum, revisited
- Khayelitsha policing: among the shambles and turf wars, it’s the residents who suffer
- Media freedom is a right that benefits all
- Attempts to discredit Madonsela could backfire
- The Mdluli matter: Nxasana’s first big test
- Sparing the rod: what it really entails
- Secrecy Bill: a touch more confusion, and a glimmer of hope
- Zuma's Secrecy Bill move: The Darker Side
- Hoffman’s complaint: why it was bound to fail
- Freedom of expression – and the quest for living meaningfully
- When a joke is not a joke
- The bad news: Qwelane’s constitutional challenge might just work
- Restoring the Electoral Commission: What happens next?
- A vote of no confidence is not to be taken lightly, by majority or minority
- The murky marriage of money and politics
- FF+ vs. EFF: doomed to fail
- Spy Tapes: A clear and simple case
- Hell is other people (trolling the Internet)
- Colour me irrational
- Women’s day – just another day for men to call the shots
- Arms Deal Commission: It’s the moment to make or break
- Marikana Commission: More questions than answers
- The court of individual identity
- Pius Langa: A man who knew the meaning of change
- Dear Film and Publications Board, please review your own rules
- Animal antics, and the separation of powers doctrine
- Hypocrisy fit for a king
- Take care with those ‘insults’
- ‘Top secret’ Nkandla report: On the highway to embarrassment
- Traditional leadership: Cat can look at a king
- Equal Education: The Minister doth protest too much
- Willing buyer, willing seller works… If you have a lifetime to wait
- Polygyny: Our human rights half-job
- Trial by media? Actually, that’s impossible
- Pistorius: The horror of a broken (white) body
- Oh what a tangled legal quagmire... when first we practise an NDPP to hire?
- Breytenbach: too little fear, favour and prejudice?
- The curious case of the pastor punished for honesty
- What’s that smell? Must be the name droppings.
- KZN University: A storm in a (Zulu) teacup
- Nkandla: The details will, and should, be made public
- Great speech vs. hate speech: how it really works
- Cape Town evictions: Brutal, inhumane, and totally unlawful
- The new, tamer Secrecy Bill: Still not constitutional
- Zuma and the Guptas: the ‘symbiosis’ continues
- Discrimination is illegal. When will we learn this?
- It’s not a democracy if our children aren’t equal
- An upside-down world: What would happen if we cared about the ‘others’?
- JSC: Let’s inject some common sense, shall we?
- Rose-tinted amnesia: The struggle to ‘rebrand’ SA’s Apartheid past
- Cardinal Napier: the plot thickens
- Redefining ‘merit’: first task for a transformed JSC
- The dating race
- Putting the ‘dread’ into ‘dreadlocks’
- Liars, damn liars, and the SA government
- Constitution clear on troops in the CAR: Zuma must talk to Parliament
- SA in CAR: the questions that remain
- Why are South African soldiers dying in CAR?
- Covering up sexual abuse is a crime, Cardinal
- Nkandla: Oh, what a tangled web we weave…
- The education MEC, children's heads, and a knobkerrie
- In black and white: the truth about ‘unconstitutional’ race quotas in universities
- Losing battles: Why the FMF doesn’t stand a chance
- Democracy vs. traditional leadership: the delicate ballet
- Police brutality comes as a surprise? Really?
- Sometimes a Tweeter is just a Twit
- Lady Justice’s scales appear to be faulty
- Pistorius trial: The legal principles that will decide the case
- Oscar Pistorius case: Bail isn’t denied as easily as you think
- Public opinion: Is there really any danger of prejudice against Oscar?
- All we know is that a woman is dead
- The secret history: Unearthing the mysterious Presidential Manual
- Sexwale abuse allegations: Very much our business
- SA’s rape epidemic: The limitations of outrage
- Will the real freedom of expression please stand up?
- But what of the people of Khayelitsha?
- WWE Smackdown: Zille vs. TNA edition
- Nkandla: Everything that's wrong with the Zuma government
- Nkandla: The spinning, mincing, dicing - and the report we're not allowed to read
- Beyond all (t)reason
- Judicial transformation: South Africa's appalling non-commitment
- The criminal stupidity of criminalising teen sex
- Careful, Mr Mthembu: The re-emergence of Apartheid's 'volksvreemdes' mentality
- Unequal education: the problem with providing learning for all
- SA troops in CAR: Why we should all be worried
- Mulholland column: Ignorance squared is still ignorance
- Elective processes: Something is rotten in the kingdom of the ANC
- Outa application: Courts can't fix political processes
- Chaskalson, SACP and the Constitution: Don’t touch me on my liberalism
- Carlisle and car key confiscation: Don't go with the (traffic) flow
- Dear Contralesa, please approach your nearest healer for a diagnosis
- Simelane: You can't end what never truly began
- Playing by the rules: The balancing act of Judge Dennis Davis
- Sunlight is the best disinfectant
- Lenasia: The haunting abandonment of humanity
- Lies, damn lies, and Zuma's 'bond'
- Show us the money, Mr Zuma
- The opposition doth protest too much: Why the ANC is hellbent on crushing debate
- Note to Zuma: Try commanding respect, not demanding it
- Dear Nxesi, your fantasy is damaging South Africa’s reality
- Running the Gauntlett: Why the struggle for appointment?
- Affirmative action: a decidedly middle-class problem
- Hate crime: there is no such thing as an excuse - ever
- Mfeketo and Zuma: You scratch my back, I'll scratch yours?
- Ramaphosa: Where does corruption begin and end?
- The Zuma recordings: SA is the crayfish, corruption the boiling water
- No safety in numbers: Why a bigger opposition isn't a stronger opposition
- Specs, lies and audiotape - the hidden Zuma recordings
- The ANC on school closures: can they win?
- Thuli Madonsela: The difference between 'unpopularity' and 'misconduct'
- Democracy: it starts in Parliament
- The National Key Points Act: not just unconstitutional, but totally invalid
- Simelane and 'rational' thought
- Halt the witch-hunt, Minister
- Home is where the taxpayer's money is
- Will Malema's case stand up in court?
- South Africa's Striking Miners: A Menace to Society? Or just to the middle class?
- E-tolling judgement: Sorry for Gauteng, but it's perfectly lawful
- Silence is golden - if the speakers are criticising the State
- Malema at the SANDF: Inappropriate? Yes. Illegal? No.
- Freedom of religion: not so free after all
- Whites against Woolworths: doth they protest too much?
- From the NPA with fear, favour - and prejudice
- Marikana murder charge withdrawal: the first glimmer of sanity
- Abuse, Inc: The 'miners made us do it' murder charge
- A marriage made in hell
- Lonmin's Farlam Commission: not bad, not bad at all
- Marikana: Avoidable, unconstitutional… and entirely predictable