School principals are complaining and stating that their jobs will be a nightmare if they cannot tell children that sex is against the law. "How can we build the future of our country, when the law is paving the way for learners to have sex. It is not a case of children rights but a case of fighting against HIV/AIDS and to rid our country of the spread of this dreadfull pandemic amongst our youth. Every learner should have the right to go to school within a save environment without being sexually harrased. The high pregnancy rates are bringing educational standards to its knees"
The controversial High Court decision to decriminalise sexual activity between adolescent children was therefore challenged in the Constitutional Court this week.
The Justice Alliance of South Africa (JASA) has taken the battle to the Constitutional Court on Thursday (May 30). It will strenuously oppose the abolition of laws against penetrative sex between adolescent children.
Judge Pierre Rabie of the Pretoria High Court ruled on January 15 that it is no longer a criminal offence for children aged between 12 and 16 to engage in consensual sexual activities with each other. The ruling still has to be confirmed by the Constitutional Court.
"While supporting the need for changes in the law in respect of petting, cuddling and kissing, JASA will urge the Constitutional Court not to strike down the law prohibiting penetrative sex between consenting children under 16", mentioned by the alliance in a media statement released yesterday.
Wealth of evidence
JASA says it has presented a wealth of evidence from eminent medical practitioners and a well-known sexologist, and horrifying government statistics relating to schoolgirl pregnancies and abortions, in support of the case that impetuous teenagers under 16 are not equipped to assess the risks of penetrative sex. The Court will also have a 'petition' it in the form of an affidavit from some 40 Western Cape school principals saying that their job will become a nightmare if they are not able to tell adolescent children that sex is against the law.
"The Court will also consider the law in other countries", says JASA, noting that "if there were to be no sanctions attached to sexual intercourse for children in South Africa, we would certainly become one of the most liberal countries in the world".
"Nobody, of course, least of all JASA, wants children prosecuted, but our excellent system of 'diversion' found in the Child Justice Act assures that this seldom, if ever, happens. It is simply that a deterrent is vital. The girl needs to be able to say to the boy, 'No, I am not doing that, and anyway it's against the law.'
"In seeking to uphold the law against penetrative sex, the radio and TV shows, since Judge Rabie's judgment last year, demonstrate that the overwhelming majority of parents in our country want this law retained. Children understand boundaries, and the vast majority want them. Also in today's liberal society, parents need the State's help in the area of sex, as with drugs and alcohol.
"JASA also maintains that a matter of this nature is preeminently a matter for the elected representatives of the people in Parliament; accordingly one option we will be urging on the Court is that the matter is referred back to Parliament," says the alliance.
Judge Rabie's January ruling was welcomed by several child rights organisations, including Childline, on the grounds that the decriminalisation of child sexuality removes children's fear of seeking guidance from parents, teachers, counsellors and health professionals. However, the judge's decision was opposed by several organisations who say it undermines parental authority and gives a green light to sex between minors.
In the meantime school principals can have a look at the 2009 edition of the book Aspects of Education Law as guide.
- Chapter 3 (paragraph 3.2.3),
- Chapter 9 (paragraph 9.4-9.5) and
- Chapter 10 (paragraph 10.4.1) and then
- Article 17 regarding Serious Misconduct.