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Are SA children older than 12 allowed to have consensual sex, as Daily Sun said?

Reporting on a 12-year-old girl falling pregnant with a 15-year-old boy, South Africa’s biggest tabloid said children older than 12 can have sex as long as it is consensual. But the statement is misleading.

Researched by Anim van Wyk

Daily Sun has corrected their story, clarifying that "children from 12 years of age are allowed to have sex with each other as long as it’s consensual and both are between the ages of 12 and 16".

“DAD IS BARELY 15 AND MUM IS JUST 12!”

In trademark tabloid style, South Africa’s biggest-selling daily newspaper reported last week on the pregnancy of a 12-year-old girl from Nongoma in northern KwaZulu-Natal. Her parents thought she had been raped before discovering their daughter had consensual sex with a 15-year-old boy.

Daily Sun quoted a resident who “blamed government for giving children too many rights”. That is because, according to the tabloid, “children from 12 years of age are allowed to have sex as long as it’s consensual”.

Is that correct? Africa Check spoke to child law experts.

Concourt orders Sexual Offences Act to be changed

South Africa’s sexual offences act was signed into law in 2007 and criminalised sexual activity – including kissing, hugging and petting – between children under the age of 16.

However, in 2013, a case by two NGOs, the Teddy Bear Clinic for Abused Children and RAPCAN (“Resources Aimed at the Prevention of Child Abuse and Neglect”), was heard by the Constitutional Court.

Judge Sisi Khampepe and 8 other judges agreed that the section criminalising sexual activity between adolescents was unconstitutional.

Parliament changed the act and section 15 now says:

A person (‘A’) who commits an act of sexual penetration with a child (‘B’) who is 12 years of age or older but under the age of 16 years is, despite the consent of B to the commission of such an act, guilty of the offence of having committed an act of consensual sexual penetration with a child, unless A, at the time of the alleged commission of such an act, was— (a) 12 years of age or older but under the age of 16 years; or (b) either 16 or 17 years of age and the age difference between A and B was not more than two years.

Or in plain words: Someone who has sex with a child between 12 and 16 (who consents to it) is guilty of statutory rape – unless they are also aged between 12 and 16, or are 16 or 17 and the age difference is not more than two years.

Children ‘will not be treated as criminals’

Daily Sun’s statement is therefore not entirely accurate, the director of the Centre for Child Law at the University of Pretoria, Professor Ann Skelton, told Africa Check.

“Any person older than 18 years who has sex with a person under the age of 16 years can be charged with the crime of sexual penetration [statutory rape], regardless of the consent,” she said.

However, if both of the children are between 12 and 16 at the time that they engage in consensual sex they will not be treated as criminals, she added.

The clinical director of the Teddy Bear Clinic, Dr Shaheda Omar, explained to Africa Check that the aim of the changes are “to prevent secondary victimisation and further harm and trauma to children.  Hence, to protect children.”

Conclusion: Daily Sun’s statement misleading

Reporting that children older than 12 “are allowed to have sex as long as it’s consensual” Daily Sun left out an important piece of information: that it only applies to children between 12 and 16.

A 12-year old may not have sex with anyone older than 16, even when consenting to it. That would be considered statutory rape.

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