1. Children’s sexual autonomy rights Christina Nomdo Executive Director: RAPCAN Presented at Shukumisa Workshop 22 January 2015

2. Why did RAPCAN become involved in the Sexual Offences Act court case? Centre for Child Law (University of Pretoria) Strong child rights advocate Organisational reputation in child protection Resolution from the Board in 2009 Committed to child rights realisation

3. What is RAPCAN’s child rights approach Balance of children’s protection (nurturance) and participation (autonomy) rights Autonomy is participation in decisions that affect their lives: Article 12 of the United Nations Convention on the Rights of the Child Children’s Act 38 of 2005 amended in 2007 (eg. rights to access contraceptives after 12 years) Case aimed to protect rights to dignity, privacy, bodily integrity and best interest of the child Adolescents do not need to be protected in law from intimate relationships with their peers

4. How did the Sexual Offences Act 2007 limit children’s sexual autonomy rights ? Effects of Sections 15 and 16: – Criminalises sexual conduct between age 12 -16 years – Exposure to the criminal justice system – Denies access to health care and counselling on sexual decision making – Mandatory reporting by adults

5. Why is children’s sexual autonomy taboo? Children considered “innocent” and should be ignorant of sexuality Developmentally normative for adolescents to engage in intimate relationships (Flischer and Gevers) Policing children’s morality not protecting them from abuse Paternalistic view of children Does not acknowledge evolving capacities and increased autonomy when older

6. What are the Courts’ interpretation of children’s sexual autonomy rights? Judge Sachs in a Constitutional matter from 2007: “Individually and collectively all children have the right to express themselves as independent social beings, to have their own laughter as well as sorrow, to play, imagine and explore in their own way, to themselves get to understand their bodies, minds and emotions, and above all to learn as they grow how they should conduct themselves and make choices in the wide social and moral world of adulthood.”

7. What are the Courts’ interpretation of children’s sexual autonomy rights? Judge Khampepe in Constitutional Court: Criminalisation infringed adolescents’ Constitutional rights to dignity(s10), privacy (s12) and the best interest of the child (s28(2)) When adolescents are publicly exposed to criminal investigation and prosecution they will be stigmatised and shamed. Allow the criminal justice system role players to scrutinise and assume control of the intimate relationships of adolescents. Trusted third parties are obliged to disclose information which creates a rupture in family life and invites the breakdown of parental care by severing the lines of communication between parents and their children.

8. What are the Courts’ interpretation of children’s sexual autonomy rights? Judge Rabie in High Court: – criminalization of adolescent sexual conduct would “constitute an unjustified intrusion of control into the intimate and private sphere of children’s personal relationships, in a manner that would cause severe harm to them.”

9. What is RAPCAN’s position on children’s sexual autonomy rights? Attempting to use adult power to control adolescent behaviour could lead to more harm than good. Humiliating and withholding sexuality information from adolescents is harmful to their positive growth and development. Adolescents need information from non-judgmental and caring adults to inform their life choices. Adults need to include sexuality information in talks with adolescents to guide normal child development. Adolescents should be empowered by adults to make good, independent decisions about sexuality and life choices.