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Ages of consent to sex in South Africa

Wikis > Ages of consent to sex in South Africa

Introduction

South Africa has a somewhat complex regulation when it comes to the legal age of consent for sex or any related sexual act. Generally the legal age of consent is considered to be age 16 and above for all genders and sexual orientations, but certain exceptions apply, including that of sex with someone with a mental disability and other factors. The sex act must also be consensual between both parties. Persons also need to be weary of the age of becoming an adult (age 18 in South Africa), where the parents of a child still has authority about what he or she may consent to whilst under age 18.

South Africa also has a complex definition for what is considered a ‘sexual act’, and it is important that all persons are well aware of what is considered sex as per definition of the law.

The consent for sex between the ages of 12 and 16 has also been hotly debated in newspapers, social media and even a court of law, with no proposal or amendment to the current act to resolve the issue (by May 2014).

Consensual sex is also allowed between children where one is below 16 and the other one above 16, provided that the age difference between them is not more than two 2 years. For example a 17-year-old will be able to have consensual sex with a 15-year-old.

It is illegal to have sex with a child under the age of 12, and for a child under the age of 12 to have sex with any person (regardless of age), even if the sex is consensual between the two persons.

The Act governing the age of consent, and other related sexual matters and offences in South Africa are the Criminal Law (Sexual Offences and Related Matters) Act 32 of 2007, as amended.

Definitions

In South Africa the law considers a sexual act to be anything that can cause sexual stimulation or arousal. A general guide line would be –

  • kissing someone to the point of sexual arousal (or in laymen terms – French kissing)
  • any form of penetration (this includes genitals, the anus, and in some cases one’s mouth)
  • penetration can be with any body part or an object
  • touching or feeling a person’s genitals, the anus or female breasts.
  • these rules also apply to animals and corpses

‘Consensual sex’ refers to where both parties agree to sex or a sexual act, and conform to all other legal requirements as per legislation. In section 56 of the Sexual Offences Act in South Africa, it is made perfectly clear that a marriage; friendship; or any other type of relationship do not count as ‘consensual’. Both parties need to give their clear indicative or explicit permission before every sexual act is committed.

Ages 16 to 18

In South Africa a person is considered to be a child, when he or she is under the age of 18, however the Sexual Offences Act does allow consensual sex for persons 16 and older. This creates a problem where the parents of a child between 16 and 18 do not consent to their child having sex. It may in some cases be considered as ‘statutory rape’: If the parents are willing to go through the criminal procedure by opening a case and if the court can determine that the child did not possess the mental capacity to be considered “emancipated” or of a mental state to make decisions like an 18-year-old adult. The latter is usually the more difficult one to proof, as many children do show some mental level of ‘adulthood’ as early as age 15, and are generally perceived more responsible than younger kids.

Ages 12 to 16

With Act 32 of 2007, it is illegal for any person under the age of 16 to consent or be involved in any sexual act, thus both parties can be prosecuted for statutory rape regardless of their ages. However this portion of the law has been amended by a controversial court ruling in the Pretoria High Court on the 15th of January 2013. Judge Pierre Rabie ruled that two sections of the Sexual Offences Act, which criminalises consensual sexual activity between children age 12 and 16, invalid and deemed them to be inconsistent with the South African constitution.

So for the moment, as long as Parliament does not rectify Act 32 of 2007, children between the same ages of 12 and 16 may have consensual sex with each other without prosecution.

There is also a provision made for children who’s age difference are less than 2 years.

Age 12 and below

It is a severe criminal offence in South Africa to have sex with any child under the age of 12, consensual or not, or for any child under the age of 12 to have sex with any other person, whether consensual or not. Children under the age of 12, cannot be criminally prosecuted, but older persons can.

It can also be argued by the hands of Act 32 of 2007 that children under the age of 12, engaging in sexual activities with themselves (for example masturbation), is illegal as the act defines sex as any activity where sexual arousal or stimulation is induced, that includes (as per the act), by oneself.

Child pornography below age 18

In South Africa it is illegal to watch or participate in any form of pornography (‘porn’) if you are under the age of 18. It is also illegal to watch pornography where the participant is under the age of 18, whether you are an adult or not. Some see this as a strange regulation given the fact that sexual acts for 16-year-olds and above are permitted and ages 12 to 16 are permitted between those of the same age, if they perform the act in person. It raises the question which one of the two is worse, the pornography or the sexual act?

Incest: “Family members engaging in sex with each other”.
Section 12 of the Sexual Offences Act, prohibits sexual acts between family members, regardless of age. One cannot consent to a sexual act with a family member in the same blood line or adoptive family members, meaning ascendants (parents, grandparents etc) or descendents (children, grand children etc). Incest is a criminally prosecutable offence.

Bestiality: “Sexual acts with animals”.
Necrophilia: “Sexual acts with a corpse”.
Section 13 of the Sexual Offences Act also prohibits sexual acts between humans and animals (‘bestiality’), regardless of age. One cannot consent to this type of sexual act, and is a criminally prosecutable offence, along with additional interpretations of the Animal Protection Act 71 of 1962. It needs to be point out that the act does not prohibit masturbating an animal for scientific research or breeding purposes is.

Section 14 of the Sexual Offences Act further prohibits sexual acts with a corpse (‘necrophilia’) regardless of age, and is a criminally prosecutable offence.

Apart from other parts of the Sexual Offences Act, there are also protection for sexual acts for people ages 18 and above. The most common factor (applicable for all ages) is sexual assault and rape, but something less known to South Africans is that sexual assault, ‘statutory rape’ and rape also may account for cases where persons, above or below age 18, forces another person to watch a sexual act (in person or on a multimedia medium) without their consent.
An example would be where two people engage in sex with each other, in front of third person (friend, child etc) in the same room – without the onlooker’s consent.
This falls under the category of ‘sexual assault’ in the Act, and is criminally prosecutable. Sexual assault also arises from distributing footage, or photos of another person’s sexual parts or sexual act without their consent. This is why in running news bulletins, where for example school children, who have recorded; taken photos of sexual acts; or distributing it, may be charged with sexual assault, even though they themselves were not involved in the sexual act. See section 7 to 11 of the Act for more detail.

Flashing persons; exploiting persons (especially children) for financial gains and various other aspects is also considered as sexual assault by the Sexual Offences Act.

Sex with someone mentally disabled

The Sexual Offences Act goes into broad detail of sexual acts with people with disabilities, but in summary, sexual acts with any person (regardless of their age), who are registered as a person with a mental disability, is prohibited and criminally prosecutable.

Mandatory reporting of sexual offences

In South Africa it is mandatory for any person carrying knowledge of a sexual offence to report it to the SAPS (South African Police Service).

Certain professionals (as specified by the law, including social, mental well-being and health care workers) must report any reasonable belief that a sexual offence has been committed to the SAPS. They may also approach the DSD (Department of Social Development), the SAPS or any related social worker organization for assistance.

Act 32 of 2007 also makes it mandatory to report any attempt or conspiracy by someone to commit a sexual offence to the above said authorities.

Homosexuality (LGBTI) and gender discrimination

It is important to note that the new Act (Act 32 of 2007) no longer has separate legal ages of consent for sex between different sexual orientations or genders. All sexualities and genders are interpreted as equals under the act. Homosexuality and gender discrimination is further more protected by the South African Constitution, and South Africa’s society in recent years are growing more accepting of homosexuals (LGBTI) and equal rights for all genders (especially for woman).

History

Until the new act for Criminal Law (Sexual offenses and related matters) Act 32 of 2007 came into effect on 16 December 2007, South Africa’s legal age of consent was much more confusing and complicated.

The previous acts (Immorality Act, 1957 and Immorality Amendment Act, 1969) clearly differentiated age of sexual consent between different genders, as well as sexual orientation. Though these old regulations date from South Africa’s Apartheid era and hold certain levels of discrimination, they were not related to the Apartheid regime.

These older acts have some parts of their content with routes from the Dutch law system as far back as the 17th Century. Girls under the age of 12 were considered incapable of consenting to sex (but not boys); homosexuality was already considered illegal by general law; and in the amendment act this was further enhanced for criminalisation over a public ‘panic’ for homosexuality. This act focused mainly on sexual consent by females.

The interim constitution for South Africa, in effect in 1994, abolished the discrimination on the basis of sexual orientation or gender and thus some parts of the sex and sexual offences act(s) in effect at that time were overruled, and finalised with the final constitution of 1997.

The Immorality Amendment Act, 1988 changed the Immorality Act’s name to the “Sexual Offences Act, 1957”. This amendment also prohibited sex between a boy under 16 and a woman (age and gender discrimination), between two men under the age of 19 (sexual orientation discrimination) and a girl, under the age of 19 (gender and age discrimination, as well as sexual orientation discrimination). The new constitution called for a whole new concept of legislation concerning sexual acts and sexual offences, and this lead to the Criminal Law (Sexual Offences and Related Matters) Act 32 of 2007.

Controversies

On the 15th of January 2013, Judge Pierre Rabie made a ruling in favour of the Teddy Bear Clinic for Abused Children to overturn two clauses in Act 32 of 2007. The Clinic brought the case to court in support with the Centre for Child Law. The Clinic was of opinion that criminalising sexual acts for children age 12 to 16 would prevent children involved in sexual acts (especially pregnant girls of that age) to come forward for guidance, advice and abortion options – out of fear for criminal prosecution. They also referred to a 2010 case where a girl came forward with claims of rape by two boys age 14 and 16, however lack of evidence for the rape charges, gave rise to the National Prosecution Authority (The NPA) to instate criminal charges against the girl as well, for having underage sex. However the prosecution in this case was later dropped on the basis that the Teddy Bear Clinic provided all children involved with proper counselling.

Act 32 of 2007, creates the provision for the creation of a ‘Sexual Offenders List’, where any person found guilty of a sexual offence’s name will be placed on this list. Such person will never be able to get a job involving children. In many cases, companies use this list to refuse employment in general, regardless if the work involves children or not. This meant that children as young as 12, engaging in sex, even with someone of the same age, may be recognized as a sexual criminal, deterring any possibilities of a proper future.

As argued too by some members of the public, “adolescents will be adolescents”, and they start experimenting at a young age anyways, making many children ‘criminals’.

The National Directorate for Public Prosecutions (part of the NPA) opposed the court on the basis that it will give children the impression that under age sex is acceptable and will also increase sexual abuse and violence among children.

Judge Rabie ruled the two sections illegal, making consensual sex between 12 and 16 year old children legal, if the parties are both between 12 and 16 (or the age difference between the parties is less than two (2) years in case of an older person). Judge Rabie added to his ruling that the two clauses will not protect children; instead it will just create a heavy burden of criminal justice procedures against these children, which might be more damaging to their well-being than the actual sexual activity done.

After the ruling there was a burst of outrage on social media and many other organizations, with the main focus that anyone ‘above age 12 may now legally have sex’. Many people deemed this devastating to South Africa’s moral status, some saying in sarcasm that a banned film, depicting children in that age bracket having sex, must then also be legalised. The Justice Department was further concerned that this will send children the wrong message, that sex at such a young age is acceptable, and perpetrators will then use this to their advantage to commit sexual offences against youngsters.

Religious organizations also lashed out with their series of opinions and concerns on the court ruling.

South Africa’s Parliament, still need to amend the act to give proper alternative regulations to the two overruled clauses (as at May 2014).

References