Teddy Bear Clinic for Abused Children v. Minister of Justice and Constitutional Development (High Court, 2013)

The Teddy Bear Clinic for Abused Children and Resources Aimed at the Prevention of Child Abuse and Neglect (RAPCAN), organizations dedicated to protecting children’s right, submitted a petition before the High Court in South Africa challenging the constitutional validity of Sections 15, 16 and 56(b)(2) of the Criminal Law, Sexual Offences and Related Matters, Amendment Act, Act 32 of 2007 (the Act), which criminalized consensual sexual activities between children of certain ages.

Sections 15(1) and 56(2)(b) of the Act, as read with the definition of “sexual penetration” in Section 1 of the Act, criminalized a child aged 12-15 for engaging in an act of consensual sexual penetration with another child who is also 12-15 years old. It also criminalized a child aged 16 or 17 for consensual acts of sexual penetration with a child under 16, where the age gap between them is two years or less.

Furthermore, Sections 16 and 56(2)(b) of the Act and the definition of “sexual violation” in Section 1 of the Act criminalize a child aged 12-15 years old for engaging in consensual sexual conduct with another child aged 12-15 years old, where there is more than a two-year age difference between the two children.

Additionally, in the event that the High Court upheld the constitutionality of Sections 15 and 16 of the Act, the applicants asked the Court to determine: i) Whether Section 54(1)(a) of the Act, which requires a person who has knowledge that the impugned offences have been committed by a child under 18 years of age to report such knowledge to a police official; and ii) Whether Sections 50(1)(a)(i) and 50(2)(a)(i) of the Act, which require children convicted of the impugned offences to be included in the National Register for Sex Offenders, were unconstitutional, considering they apply to children engaging in consensual sexual activities.

The applicants brought their applications (i) in their own interest as organizations dedicated to protecting children’s rights pursuant to Section 38(a) of the Constitution; (ii) on behalf of children at risk of being criminalized to protect their rights pursuant to Section 38(c) of the Constitution and Section 15(2)(c) of the Children’s Act 38 of 2005 (“Children’s Act”); and (iii) in the public interest pursuant to Section 38(d) of the Constitution and Section 15(2)(d) of the Children’s Act.