Decriminalising consensual sexual acts between adolescents within a constitutional framework : the Teddy Bear Clinic for Abused Children and Another v Minister of Justice and Constitutional Development and Others Case: 73300/10 [2013] ZAGPPHC 1 (4 January 2013)

Abstract

The case under discussion reflects upon the decriminalisation of consensual sexual activity between adolescents within a constitutional realm. The Criminal Law (Sexual Offences and Related Matters) Amendment Act, Act 32 of 2007 (hereinafter referred to as the 'Act') came into operation on 16 December 2007 (see CR Snyman Criminal Law 5ed (2008) 353; D Smythe and B Pithey Sexual Offences Commentary (2011) v). The Act repealed various common-law crimes and more specifically the common-law crime of rape with an expanded definition and scope, also providing for a gender-neutral definition (Snyman supra 353). In addition, the common-law offence of indecent assault was repealed and replaced with the statutory crime of sexual assault (see in general Smythe and Pithey supra 3-4-3-7; Snyman supra 353). Various other common-law offences such as bestiality, incest and intercourse with a corpse were replaced with new statutory offences (Snyman supra 353). A unique aspect of the Act relates to the chapters dealing with comprehensive new offences relating to sexual acts against children (see Snyman supra 392-399; Smythe and Pithey supra Chs 9-13). The initial purpose behind the Act during its inception was, in addition, to specifically deal with sexual offences against children (Smythe and Pithey supra v). It was, however, later decided that the Act should pertain to sexual offences perpetrated against both adults and children (Smythe and Pithey supra v). The Act accordingly provides for numerous sexual offences against children. The decision under discussion specifically dealt with the provisions of sections 15 and 16 of the Act. Section 15 deals with acts of consensual sexual penetration with certain children (also referred to as statutory rape); whereas section 16 deals with acts of consensual sexual violation with certain children. As the Act is still fairly new, the interpretation of the various sections by the courts remains a daunting reality both at present and in future. The decision under discussion is of particular importance as it is the first decision where sections 15 and 16 of the Act were interpreted within a constitutional framework. The decision sheds light as to the various anomalies which can potentially arise during the application of these sections in practice, emphasising yet again the important interplay between the Constitution and the substantive criminal law and more specifically the law relating to sexual offences