‘No kissing’ law referred to ConCourt

Sections of the Sexual Offences Act, which criminalise consensual sex between children younger than 16, have been deemed inconsistent with the Constitution, the North Gauteng High Court has ruled.

Judge Charl-Pierre Rabie today said he would refer the matter to the Constitutional Court.

“Section 15 and 16, among others, are invalid to the extent that they criminalise a child,” said Rabie.

This might mean that certain sections of the controversial Sexual Offences and Related Matters Amendment Act of 2007 will be up for review.

The ruling will be welcomed by the child rights activists who slammed the act for criminalising any consensual sexual activities such as kissing between children aged 12 years and older but younger than 16.

The act also imposes penalties, including imprisonment, on anyone who is aware of consensual sexual activity between children but fail to report it to the police.

The Teddy Bear Clinic for Abused Children and RAPCAN (Resources Aimed at the Prevention of Child Abuse and Neglect) – represented by the Centre for Child Law – launched a court challenge of the sections of the Sexual Offences Act last year.

They argued that the act forced parents, teachers, school nurses, school counsellors and pastors among others – from whom children generally seek assistance and guidance – to report these children to the police if children confide in them about kissing or engaging in sexual sexual intercourse with other adolescents.

In a brief judgment, Rabie said the ruling will be referred to the Constitutional Court within 15 days for the matter to be heard again.

Carina du Toit, attorney from the Centre for Child Law, welcomed the judgment and said the centre would comment further after studying the judgment.