The rules are not there for your convenience

Rhodes>Perspective>2013 Archive

Attempting to prosecute for behaviour that bothers us is not going to work ALMOST 20 years into democracy, many of us still believe we can use the law to control behaviour we don't like.

Heated reaction to a court ruling that sex between consenting teenagers aged between 12 and 16 is not a crime reminds us that many South Africans still see the law as a safety blanket, even when it offers no security. Which suggests that, while apartheid has gone, some of the attitudes which lay behind it have not.

The uproar about the ruling is based on several fallacies: all stem from attitudes that show the gap between what our Constitution says and what many believe. The most obvious flaw is to assume that, if society does not lock up people for doing something, it approves of what they do.

Just about everyone agrees that over-eating, or only eating junk food, is bad for you. But we don't charge people with a crime for doing it. Nor do we charge people who smoke and get drunk in private. There are many behaviours upon which people frown that are not a crime. If we want to see why it is flawed to believe that the only way society can express disapproval of behaviour is by prosecuting the people who do it, we need only look at antismoking measures.

Government has taken steps to press people who smoke to change their behaviour. But smoking in your own home is not a crime. Similarly, if teen sex is considered a threat to society, measures can be taken to discourage it that do not entail making it a crime. Second, the assumption is that the law is good at controlling private behaviour.

Until not long ago, homosexuality was a crime. Besides being a violation of people's rights, this did not stop people being homosexual — it simply stopped them being open about it. Teens have not stopped having sex because it was a crime. Third, the belief that the tougher we are on people who behave in a way we consider harmful, the less likely they are to do it.

But there is no evidence that the death penalty makes murder less likely or that banning alcohol in the US reduced drinking. Child rights activists point out that the law's only effect was to harm the few teens who admitted having sex. Not only did this not stop the behaviour — it may have made it harder to stop by deterring young people from approaching counsellors.

Fourth, that if we stop criminalising one form of behaviour, we are letting people do what they like. Some claim that, if we don't lock up teens who have sex, we might as well allow young people to take drugs or steal. But drug-taking is a crime (whether it should be is debatable) and so is stealing.

Sex is not, if both parties consent and it's private. To say that teenagers should not be prosecuted for doing something which is legal if done by adults is not the same as saying that anything goes. Teenage sex may be repugnant to many people and their view needs to be taken seriously. But it does not harm the rest of society and so it should not be a crime.

The fifth assumption is that refusing to prosecute one form of behaviour will open the door to another. The argument here is that, by not prosecuting teens who have sex, we are opening the door to child trafficking or child pornography or films of teenage sex. That is a little like suggesting that we ban sport because it might lead to match-fixing or doping.

While sex is not illegal, exploiting people is. Trafficking children or making them appear in pornographic movies is a crime. Teenagers who force themselves on others are still breaking the law. If we find a particular behaviour harmful, we need to work harder at preventing it. We cannot pretend that we have solved the problem by outlawing another behaviour.

There is a parallel between this form of thinking and that of people who want laws to crack down on violence during strikes. Violence is, of course, illegal. So, if strikers are getting away with it, it is because police are not enforcing the law. The solution is that they should enforce it, not that a new law should be passed. This does not stop zealots demanding new laws that will slap penalties on unions whose members are violent during strikes.

In both cases, people think that a form of behaviour can be controlled by controlling another. The logic does not hold. Making teenage sex a crime does not stop it. Nor does it make violence or exploitation less likely. All it does is terrorise a few young people and give some older ones a - false - sense that social order is being enforced. It does not make our society better or protect anyone who needs protection.

Given how ineffective the law has been at controlling teenage sex, it is reasonable to assume that those who are angered at the judgement are not worried that we have lost a means of controlling a social ill. It seems more likely that they are saying something else - that they feel comfortable with control and believe that tough laws provide it.

Fear that the social order is collapsing and that everything is now allowed is a much more powerful motive than worry about what teenagers do behind closed doors. These attitudes are common throughout the world - they may be more so here, where control through the law overrode the right to choose for decades. But they make it harder to build a democracy in which everyone can choose and to address many of the problems we face.

The court ruling has taken us forward. But far more debate is needed if the values it upholds are to become more common in our society.

Prof Steven Friedman is director of the Centre for the Study of Democracy, Rhodes University

Source: NEW AGE, THE (First Edition)