Abstract:
Children must be afforded the opportunity to relish their childhood, and this involves not only
growing up in a stable environment, free of fear, trauma and violence but also one that safeguards
their rights and liberties. In South Africa, an absence of legislative guidance has intensified the
uncertainty facing many South African children who appear to have been chastised by a legal system
that tends to punish consensual sex between them. Many laws have been put in place to alleviate the
adversities experienced by children on a regular basis but some of them have inadvertently ignored
the need for adolescents to make their own choices in the social and moral world of adulthood.
Sexual conduct and intimacy amongst teenagers are common in this day and age and even though
our legal system may warrant interventions being put in place to protect children from sexual abuse
and sexually transmitted diseases, the position is slightly different where children engage in
consensual sexual conduct. Controversially, the Criminal Law (Sexual Offences and Related
Matters) Amendment Act 32 of 2007 in the form of Section 15 and 16 sought not only to criminalise
consensual sexual conduct between an adult and child but also between child and child. The article
sets out to address the grey area that currently exists in instances where children engage in
consensual sexual conduct. The Constitutional Court has provided a way forward in terms of
addressing the matter. The Teddy Bear Case provides a refreshingly different approach from earlier
decisions where children are now viewed as independent social beings. The ruling gives weight to
the State's constitutional obligation to safeguard the best interests of children at all times and this
entails giving effect to children's rights to autonomy, dignity and privacy. The Court clearly
highlighted that it would be against the spirit of the Constitution to allow the criminal justice system
and its role-players to invade the private intimacy of consenting adolescents who chose to give
expression to their sexuality. The court in the Teddy Bear Case recognised its constitutional
obligation in safeguarding the dignity, privacy and integrity of adolescents to fall in line with an ever
evolving society. The article expands on the legal position of adolescents who engage in consensual
sexual intercourse with each other and details how the Constitutional Court has managed to smooth
out the indifference that existed within the current legislative framework. The Constitutional Court
has clearly recognised the importance of educating adolescents instead of punishing them and the
time has come for the various role-players involved in the criminal justice system to follow suit. |
