SPARE a thought for the judges of the Constitutional Court. Sometimes I think we don’t pay them enough, especially when they are often expected to mediate over matters of common sense.
Take Thursday last week. The men and women of the highest court in the land sat through arguments for and against teenagers kissing, holding hands, fondling, and perhaps having sex, in a case involving the Teddy Bear Clinic for Abused Children and the Department of Justice.
The court is meant to confirm an order of the North Gauteng High Court that some provisions of the Criminal Law (Sexual Offences and Related Matters) Amendment Act to criminalise consensual sexual exploration among teenagers are unconstitutional.
The government had initially put forward the provisions primarily as a way to protect children from sexual exploitation by adults.
How this laudable intention ended up being confused with teenagers engaging in some form of hanky-panky is unclear. But until the court makes a decision on this matter, consensual sexual exploration among teenagers between the ages of 12 and 16 is unlawful and anyone who is aware of it and doesn’t report it to the police can be held criminally liable.
The Teddy Bear Clinic argues, correctly, that the law should not criminalise or brand as deviant the normal development of young people’s sexuality. It also wants to avoid exposing them to the trauma of the criminal justice system as a result.
The government, for its part, says that in addition to protecting young people against sexual violence, the provisions aim to protect teenagers from risks such as pregnancy or contracting HIV and other sexually transmitted diseases. The response to all of this involves unleashing an army of police, prosecutors, and social workers onto South Africa’s teens.
Chief Justice Mogoeng Mogoeng wondered that, given that there were "so many ways to empower parents to raise their children properly", he didn’t "know why children should face the police, social workers and prosecutors".
Well, many of us are wondering the same thing.
The state promises to act with "discretion" and will not really prosecute two children who engage in consensual sexual behaviour, but will more likely have them undergo ‘‘diversion" programmes that will include some counselling and taking part in community work. What a horrible thought.
While the children go for this "diversion" and "community work", their parents will face possible jail time for failing to report their consensual sexual exploration to the authorities.
This is the same government that administers the Children’s Act and Sexual Offences Act, which allows the same children between the ages of 12 and 16 to access sexual health services for sexually transmitted diseases and contraceptives and gives girls as young as 12 the right to a safe abortion.
So why this obvious contradiction? A generous view is that this is simply incompetence on the part of state legal advisers. I fear that the truth is more unpleasant — the convergence of incompetence with a deepening conservatism within the state, both of which threaten to reverse some major victories of the past two decades, especially for women.
So the court will have to ask how it is possible that teenagers engaged in healthy sexual exploration as part of their normal development could be criminals.
And I suppose it won’t be that difficult. Constitutional law expert Pierre de Vos points out on his blog, Constitutionally Speaking, that the high court in this case refers to the Constitutional Court judgment in S v M (Centre for Child Law asamicus curiae), where the purpose of the children’s rights guaranteed in section 28 of the constitution is described as follows:
"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."
I recommend it to the Department of Justice.
BY PALESA MORUDU ,
Morudu is a writer based in Cape Town. She studied at Rhodes University