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Re-cap S 15 – consensual sexual penetration S 16 – consensual sexual violation Age of consent is 16 A person under the age of 12 is incapable of giving.

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Presentation on theme: "Re-cap S 15 – consensual sexual penetration S 16 – consensual sexual violation Age of consent is 16 A person under the age of 12 is incapable of giving."— Presentation transcript:

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2 Re-cap S 15 – consensual sexual penetration S 16 – consensual sexual violation Age of consent is 16 A person under the age of 12 is incapable of giving consent The purpose of the sections is to protect children from adults who want to exploit their inherent vulnerability as children Special category of children between 12 > 16 How do we deal with adolescent sexual experimentation and should it be captured in the Sexual Offences Act

3 Section 15(2) – Consensual sexual penetration a.If both persons involved are children, then the institution of a prosecution must be authorised in writing by the National Director of Public Prosecutions; Provided that both children must be charged if a prosecution is authorised b.NDPP may not delegate the power to authorise prosecution in terms of section 15(2)

4 Section 16(2) – Consensual sexual violation a.If both persons involved are children, then the institution of a prosecution must be authorised in writing by the Director of Public Prosecutions; Provided that both children must be charged if a prosecution is authorised b.DPP may not delegate the power to authorise prosecution in terms of section 16(2)

5 Close in age defence Section 56(2)(b) It is a defence against a charge of consensual sexual violation if both accused were children at the time of the commission of the offence and they were not more than 2 years apart in age The defence also applies to 16 and 17 year olds

6 What the case was not about! The case was not about whether it is good or bad for children to have sex between ages of 12 and 16 The case was not about lowering the age of consent, we did not challenge the age of 16 because it is an international standard The case was not about any violent, non- consensual acts, it was only about consensual sexual acts between children The main question is whether criminalisation is the appropriate response to consensual sexual acts between children

7 Constitutional Court – Human dignity Criminalisation of private sexual choices is a form of stigmatisation which is degrading and invasive Categories of activities prohibited are so broad it includes much of what constitutes activities undertaken in the course of normal development Punishes sexual expression that is developmentally normal and inflicts a state of disgrace on the child Mandatory placement on the Register for Sex Offenders exacerbates the stigma Human dignity of adolescents clearly infringed

8 Constitutional Court - Privacy “Inner sanctum” of personhood that is protected by the right to privacy This “inner sanctum” includes expression of sexuality Ss 15 and 16 apply to the most intimate sphere of personal relationships It allows public officials to assume control of the intimate relationships of adolescents thereby intruding into a deeply personal realm of their lives Ss15 and 16 prohibit intimate consensual relationships and accordingly, intrude into the core of adolescents’ privacy Ss15 and 16 therefore violate children’s right to privacy

9 Constitutional Court – Best Interests S28(2) is a standard against which to test provisions which affect children in general If there is evidence that exposing children to the criminal justice system for consensual sexual conduct has a negative impact on children in general, the then court may declare the scheme contrary to the best interests of the child The court was convinced on five grounds: 1.The evidence showed that criminalisation exacerbate harm and risk to adolescents by undermining support structures and potentially driving sexual behaviour underground

10 2. Adolescents will not communicate freely – the legislation causes a rupture in family life and a breakdown in parental care by severing the lines of communication 3. Diversion cannot save the provisions – there is intensive interaction with state institutions from the arrest to the decision to divert during which the child has to disclose and have scrutinize intimate affairs 4. Prosecutorial discretion cannot save unconstitutional provisions – the spectre of prosecution remains 5. Prosecution of both adolescents is irrational – it is contrary to the purpose of the act and is exacerbated when one looks at the impact of the s56(2)(b) defence when the children are between 12 and 16, the younger must be prosecuted with the older child Constitutional Court – Best Interests

11 Important points from judgment It is fundamentally irrational to state that adolescents do not have the capacity to make choices about their sexual activity, yet in the same breath contend that they can be criminally liable Prosecutorial discretion does not save the provisions, it does not alleviate the invasion into the child’s personal life There is no proof criminalisation has any deterrent effect, the evidence shows it increases the risk to adolescents because it discourages adolescents from seeking advice and disempowers parents/caregivers

12 Even if it is assumed that criminalisation is appropriate, the sections are not tailored narrowly to protect children only from pregnancy or sexually transmitted diseases The definitions are too wide, most of the acts falling in the ambit of s 16 carry none of the risks the state is concerned about and ‘sexual penetration’ goes far beyond sexual intercourse which could result in pregnancy or contracting and sexually transmitted diseases There are less restrictive means the state could use that do not involve criminalisation to protect children and help them to lead responsible sexual lives. Criminalisation does not pass constitutional scrutiny

13 Court clearly condemns criminalisation of consensual sex between children under 16 but above 12 Parliament cannot amend the act in a way that still criminalises 12 > 16 year olds Judgment expressly excludes 16 and 17 year old children who engage in sexual penetration with a child under the age of 16 Applicants wanted to extend the close in age defence to sexual penetration to protect 16 and 17 year olds We did not challenge the age of consent or the differentiation between the age groups Court opens the door: “Parliament may wish to reconsider the close-in-age defence in light of the finding set out above”

14 DoJ&CD Proposed Draft – section 15 Definition of child between 12 > 16 still applies 15.(1)A person (“A”) who― (a)commits an act of sexual penetration with a child (“B”); and (b)the age difference between A and B is more than two years, is, despite the consent of B to the commission of such an act, guilty of the offence of having committed an act of consensual sexual penetration with a child.

15 (2)(a)The institution of a prosecution for an offence referred to in subsection (1) must be authorised in writing by the [National] relevant Director of Public Prosecutions if [both] A [and B were children] was a child at the time of the alleged commission of the offence[: Provided that, in the event that the National Director of Public Prosecutions authorises the institution of a prosecution, both A and B must be charged with contravening subsection (1)].subsection (1) (b)The [National] Director of Public Prosecutions concerned may not delegate his or her power to decide whether a prosecution in terms of this section should be instituted or not.”

16 DoJ&CD Proposed draft – section (1)A person (“A”) who― (a)commits an act of sexual violation with a child (“B”); and (b)the age difference between A and B is more than two years, is, despite the consent of B to the commission of such an act, guilty of the offence of having committed an act of consensual sexual violation with a child.

17 (2)(a)The institution of a prosecution for an offence referred to in subsection (1) must be authorised in writing by the relevant Director of Public Prosecutions if [both] A [and B were children] was a child at the time of the alleged commission of the offence[: Provided that, in the event that the Director of Public Prosecutions concerned authorises the institution of a prosecution, both A and B must be charged with contravening subsection (1)].subsection (1) (b)The Director of Public Prosecutions concerned may not delegate his or her power to decide whether a prosecution in terms of this section should be instituted or not.”

18 Our draft proposal Definitions: Nothing in the Act states specifically that 16 is the age of consent. You have to read s15 and 16 with the definitions Creates two different definitions for children We propose: –‘A child is a person under the age of 18 years’ –Removal of the reference to section 15 and 16 as a child between the age of 12 and 16 –Place the age distinction in the sections so that the ages are clear to anyone reading it

19 Section 15 – proposed draft (1) A person (‘A’) who commits an act of sexual penetration with a child (‘B’) who is 12 years of age or older but under the age of 16 years is, despite the consent of B to the commission of such an act, guilty of the offence of having committed an act of consensual sexual penetration with a child unless A, at the time of the commission of such an act, was 12 years of age or older but under the age of 16 years. Completely delete subsection 2 regarding prosecution of both and the discretion

20 Section 16 – proposed draft (1) A person (‘A’) who commits an act of sexual violation with a child (‘B’) who is 12 years of age or older but under the age of 16 years is, despite the consent of B to the commission of such an act, guilty of the offence of having committed an act of consensual sexual violation with a child unless A, at the time of the commission of such an act, was 12 years of age or older but under the age of 16 years. Completely delete subsection 2 regarding prosecution of both and the discretion

21 S 56(2) defences – proposed draft Whenever an accused person is charged with an offence under section 15 or 16 - (b) [section 16] it is a valid defence to such a charge to contend that [both the accused persons were children] the accused person was either 16 or 17 years of age at the time of the alleged commission of the offence and the age difference between [them] such accused person and the child contemplated in those sections was not more than two years at the time of the alleged commission of the offence

22 Current version of the Bill Dept took on board most of our submissions Removed the special definition of ‘child’ that applied only to sections 15 and 16 – now a child will be a person below the age of 18 for purposes of all the sections in the Act Age distinction at 16 is now included in the sections which will make it easier to read and understand the age of consent at 16 Most importantly – no criminalisation at all for children under the age of 16 for consensual sex

23 15. (1) A person (“A”) who commits an act of sexual penetration with a child (“B”) who is 12 years of age or older but under the age of 16 years is, despite the consent of B to the commission of such an act, guilty of the offence of having committed an act of consensual sexual penetration with a child, unless A, at the time of the alleged commission of such an act, was― (a) 12 years of age or older but under the age of 16 years; or (b) either 16 or 17 years of age and the age difference between A and B was not more than two years.

24 Exclusion from prosecution 2) (a) The institution of a prosecution for an offence referred to in subsection (1) must be authorised in writing by the [National] Director of Public Prosecutions if [both] A [and B were children] was either 16 or 17 years of age at the time of the alleged commission of the offence and the age difference between A and B was more than two years[: Provided that, in the event that the National Director of Public Prosecutions authorises the institution of a prosecution, both A and B must be charged with contravening subsection (1)].

25 J v National Director of Public Prosecutions Section 50 – automatic inclusion on the register if convicted of a sexual offence against a child or mentally disabled person, if court fails, then the prosecutor must ensure it is done. Section 51 – provisions allowing removal of your name from the register are very narrow and a child may end on the register for life quite easily Only section 50 was found unconstitutional to the extent that children convicted of sexual offences are automatically included on the register Part of the invalidity flows from section 51 The court did declare section 50 unconstitutional but declined to suspend or provide a remedy for children already on the register

26 First draft of the Bill Presiding officer must inform the child There must be an assessment report to assess the likelihood of re-offending The child must have an opportunity to present reasons why her name should not be included Thereafter the presiding officer may direct whether the child’s name should be included in the register Section 51 only amended to allow a child to have her name removed if she falls within one of the categories of sentences that does not lead to inclusion on the register for life No recourse for children with two counts or 18 month sentence No transitional provision for children already on the register

27 We proposed as an amendment that to section 50 that there must be a general rule that children do not go on the register automatically (2A)(a)If a court has in terms of this Act or any other law convicted a person (“A”) of a sexual offence against a child or a person who is mentally disabled and A was a child at the time of the commission of such offence, the court may not make an order as contemplated in subsection (2)(a) unless – The State must make a case for the child’s inclusion: (i) the prosecutor has made an application to the court for such an order; (ii)A has been assessed, at state expense, by a suitably qualified person, as prescribed, with a view to establishing the likelihood of whether or not he or she will commit another sexual offence against a child or a person who is mentally disabled;

28 (iii)A has been given the opportunity to make representations to the court as to why his or her particulars should not be included in the Register; and (iv)the court is satisfied that substantial and compelling circumstances exist, based upon such assessment and any other evidence, which justify the making of such an order. (b)In the event that a court finds that substantial and compelling circumstances exist which justify the making of an order as contemplated in subsection (2)(a), the court must enter such circumstances on the record of the proceedings.

29 Submissions regarding section 51: Child may approach the court to have his details removed and the court can order an assessment at state expense to determine whether the child’s name should be removed from the register (c)Any person who was a child at the time of the commission of a sexual offence and whose particulars have been included in the Register prior to the commencement of this provision, may, notwithstanding the provisions of section 51, approach the court that made the order as contemplated in subsection (2)(a), in the prescribed manner, for an order directing the Registrar that such particulars be removed from the Register, upon which the court must cause an assessment of such person as contemplated in subparagraph (a)(ii) to be undertaken at state expense Substantial and compelling circumstances must exist to deny application for removal

30 The latest draft has very minimal changes In terms of section 50 it only requires that presiding officer must inform the child of the court’s power to make an order entering the child’s details on the register and afford the child an opportunity to argue why her details should not be included in the register No room for assessment and it would be at the expense of the child Section 51 amendments remain the same, only allowed to request a removal when sentenced to a sentence below 18 months and only one count Part of the Bill that requires a lot of lobbying


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