AFRICAN CHILDREN AND SEXUALITY: A PERSPECTIVE ON TRADITIONAL AND CONTEMPORARY APPROACHES

Abstract

For many years in South Africa, sexual acts with, and between children under the age of sixteen, were regarded as a sexual offence, even if consensual. A twist to this legal position was brought about by the case of Teddy Bear Clinic for abused Children v Minister of Justice and Constitutional Development (2013 (12) BCLR 1429 (CC)), where the Constitutional Court decriminalized consensual sexual activity between children of certain age-ranges, starting from the age of twelve. Prior to serving before the Constitutional Court, this case was heard by the North Gauteng High Court. The application brought before the High Court challenged the constitutional validity of sections 15 and 16 of the Sexual Offences and Related Matters Act (32 of 2007) in as far as the said provisions criminalize a range of consensual sexual activities between children of a certain age. Sections 15 and 16 respectively criminalize acts of consensual sexual penetration and sexual violation between children.
The court’s decision of decriminalizing consensual sexual acts of children of certain ages has created a space for a discourse on children and their decision-making on sexual matters. The court’s decision further paved way for a reflective discussion of traditional and contemporary approaches used in conscientizing children about their sexuality. As discussed below, the said approaches immensely influence the decisions that children make in sexual matters that affect them.
It is asserted in this article that, while legal developments in the contemporary society emphasize the individualistic nature of a child when dealing with matters of his sexuality, it is argued that this approach cannot be the sole basis in dealing with sexuality of children. This is because the Constitution which serves as a bedrock of our legal system recognizes customary law as a distinct component of the South African legal system. It further recognizes the multi-cultural nature of the society within which children are raised. It provides that everyone has the right to participate in the cultural life of their choice, guided by the dictates of the Bill of Rights.

This article seeks to explore the extent to which the Constitution, in as far as it recognizes the pluralist nature of our society, is assimilated in legislation and case law when dealing with the sexuality of children.