Sunday Times (Johannesburg) - December 22, 2007
Buyekezwa Makwabe and Nashira Davids

The long-awaited Sexual Offences Act has stirred up a hornets' nest barely a week after being passed into law. It has substantially changed the definition of rape and was drafted to protect children and the mentally disabled from sexual exploitation.

But it also effectively bans teens under 16 from French kissing, hugging intimately and even holding hands.

Technically speaking, girls and boys aged 12 to 16 who engage in consensual masturbation, passionate kissing, heavy petting, hugging and erotic massages are committing sexual violation - a criminal offence.

But prosecution is at the discretion of the Provincial Director of Public Prosecutions.

Children having consensual sex - including oral or anal sex - can only be prosecuted on instruction from the National Director of Public Prosecutions - and both parties must be charged.

Department of Justice spokesman Zolile Nqayi said the intention was not to jail teenagers, but he would not list the penalties teens faced if prosecuted.

"The intention of the Act is not to criminalise consensual sexual acts between peers, hence the wide prosecutorial discretion ... There is therefore no intention to police the sexual behaviour of children ... The Act is meant to protect children from being sexually exploited," Nqayi said.

"Complaints are usually laid by parents and any person who wishes to lay a complaint in respect of any offence allegedly having been committed, should do so by reporting the matter to police."

The law provides for the "reality" of teenage sexual experimentation, he added.

The South African Law Reform Commission, in one of its discussion papers on the Act, said children between 12 and 16 often engaged in sexual activity but most instances went unreported and "rightly so".

"However, the commission wishes to make it very clear that it does not want to encourage children to become sexually active at a younger age ... It is just a reality that children in this age category engage in consensual sexual activity with peers [to the horror of their parents]," it added.

Karen Andrews, a clinical psychologist, said that children usually became sexually active at around 14.

"From the age of six there can be playful experimentations ... between 12 and 14 they can understand the concept of sex and make a decision. Anything younger than 12, they don't know what they are doing," she said.

Many psychologists and child rights organisations have slated this particular section of the Act and have accused government of not "thinking out" the legislation.

"It is unhelpful to criminalise young people for engaging in what is normal and appropriate sexual activity for their age group. We need policy that encourages communication between young people and adults around adolescent sexuality," said Samantha Waterhouse, advocacy manager for Rapcan, a child rights group.

"This law does the opposite, criminalising behaviour [and] will not stop it from happening; it will force children to act in secrecy and discourage communication."

Sexologist Marlene Wasserman said that despite assurances that prosecution was unlikely, children would still feel "absolute shame" and "absolute guilt" about natural sexual experimentation.

"Touching breasts is what children do. I ran a workshop on this about two weeks ago; they talk about necking, they have their own codes. Each child needs to be taught to establish their own boundaries about how far they are going to go. Touching breasts, kissing and oral sex is just what young people do," she said.

Joan van Niekerk, national co- ordinator for Childline, said it was her understanding that government included this part of the Act to encourage teenagers to abstain from sex because of HIV/Aids, unwanted pregnancy and the expanding need for child support grants.

"One of the things we fail to realise is that the law cannot teach morality and if we have an issue with immoral behaviour of young people, the law is a clumsy tool to deal with it," Van Niekerk said.

"What we really need is parenting skills, the promotion and protection of family values."

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