This was an application referred from the North Gauteng High Court in Pretoria to confirm its ruling on the constitutionality of certain provisions of the Criminal Law, Sexual Offences and Related Matters, Amendment Act, Act 32 of 2007 (the Act) relating to the criminalization of consensual sexual conduct with and among children of a certain age.
In its decision, the High Court held that by criminalizing consensual contact between children of a certain age, Sections 15 and 16 of the Act violated the rights of the child and were therefore invalid and suggested amending the provisions by reading words into them. Under the terms of Section 172(2)(a) of the Constitution, the High Court’s ruling has no force unless and until confirmed by the Constitutional Court.
The Constitutional Court reaffirmed that children enjoy fundamental rights guaranteed to “everyone” under the Constitution. Considering the evidence submitted by the applicants in the case before the High Court, the Constitutional Court noted that South African children reach maturity between the ages of 12 and 16, and during this time their experiences have long lasting impacts on their adult lives. Adolescents engage in sexual exploration including kissing, masturbation, and sexual intercourse which in circumstances, where it is consensual, is potentially a normal and healthy experience. At this age, they need guidance and support from adults and caregivers to avoid the negative consequences of sexual behavior.
The evidence presented to the case showed that the criminalization of harmless and even beneficial consensual sexual activity between adolescents could be harmful. Adolescents who were charged with such offences experienced emotional distress such as shame, regret, anger, and embarrassment. It further promoted stigmatization of adolescent sexuality, and suppressed and drove underground expressions of sexuality, making it difficult for adolescents to access guidance they need from adults. The enforcement of the provisions 15 and 16 would subject many adolescents to the criminal justice system. This would have a negative impact on their healthy and normal development, as they may suffer trauma and secondary victimization.
The Constitutional Court agreed with the Applicants that criminalization of consensual sexual conduct is a form of stigmatization that is degrading and invasive. Failure by society to respect consensual sex choices diminish one’s innate self-worth (See National Coalition for Gay and Lesbian Equality and Another v. Minister of Justice and Others [1998] ZACC 15; 1999 (1) SA 6 (CC); 1998 (12) BCLR 1517 (CC)). Moreover, punishing sexual conduct that is otherwise normal disgraces the adolescent. The Court therefore held that the impugned provisions clearly infringed on adolescents’ right to dignity.
Additionally, the Constitutional Court reaffirmed that the right to privacy protected individuals’ “inner sanctum,” which includes intimate relationships and sexual preference. The Court held that this also applied to adolescents, and the effects of Sections 15 and 16 infringed upon adolescents’ right to privacy by intruding into their intimate lives.
The Court also stated that sections 15 and 16 of the Act infringed upon the best interests of the child principle by subjecting adolescents to harm and risk, for instance by driving adolescent sexual behavior underground and undermining the guidance they need from adults and caregivers in matters of sexuality. The Court also considered the respondents’ arguments that prosecutorial discretion and diversion would mitigate this harmful and negative impact, but dismissed these arguments as untenable.
Having found that Sections 15 and 16 infringed on the rights of children, the Court determined whether the limitation of rights was reasonable and justifiable under Section 36 of the Constitution. The Court found that while the legitimate intention of the Act was to discourage adolescents from prematurely engaging in consensual sexual conduct which may harm their development and increases the likelihood of the risks associated with sexual conduct, the respondents did not proffer any evidence to show how the impugned provisions achieve the intended purpose. On the contrary, the evidence showed they increased harm and risk to adolescents. Therefore, the Court held that there was not a rational link between the impugned provisions and their stated purpose, so that Sections 15 and 16 of the Act did not pass constitutional muster. Furthermore, the Court established there were less restrictive means to achieve the intended purpose than criminalizing wide-ranging behavior, including behavior that would be regarded as normal.
Consequently, the Constitutional Court held Sections 15 and 16 unconstitutional to the extent that they criminalized consensual sexual conduct among adolescents between the ages of 12 and 16, and declared them invalid, but suspended the invalidity for 18 months to allow Parliament to remedy the statutory defect. To prevent the provisions from remaining operational in the interim, the Court imposed a moratorium on all investigations into, arrests of, and criminal and ancillary proceedings against adolescents for consensual sexual activities with their peers pending the remedial action of Parliament. Moreover, the Court ordered the Minister of Justice and Constitutional Development to erase from the National Register for Sex Offenders details of a child below the age of 16 convicted under the invalidated provisions and of a child who was issued a diversion order following a charge under the invalidated provisions.