According to an Eyewitness News report, President Jacob Zuma signed the Criminal Law (Sexual Offences and Related Matters) Amendment Act into law yesterday.
The Act decriminalizes consensual sexual activity between minors aged 12 to 16 (or 17 if the age difference is not more than 2 years). The Act reaffirms, however, that having consensual sexual penetration and consensual sexual “violation”, between an adult and a minor between 12 and 16 remains a crime – called statutory rape or statutory sexual assault, respectively.
Prior to this, children between the aforementioned ages caught having intercourse or “violating” one another would be granted the rare privilege of a criminal record before reaching adulthood. The Constitutional Court found in the case of Teddy Bear Clinic for Abused Children v Minister of Justice and Constitutional Development in 2013, however, that those provisions were unconstitutional.
The Act further removes the automatic inclusion of the names of people who were children at the time of the sexual activity in the Sexual Offenders Registry. Judges now have a discretion, based on the facts at hand, whether or not the particulars of the person is to be included in the Registry.
The Amendment Act does not change the law with respect to intercourse prior to reaching the age of 12, and does not affect the law relating to adult sexual offenders in relation to children.
I am more or less supportive of this. Sexual experimentation between adolescents has been part of our nature as humans, seemingly forever. I fully believe that such experimentation should, however, be discouraged. Capitalism has done many great things for humanity and our convenience, but that is not to say all the results are perfect for all situations. Due to the wonders of capitalism, which I would not replace for anything in the world, humanity has become very cosmopolitan.
Life is easy, speaking in relative terms of course, compared to life in the Middle Ages, for example. Children were often forced to reach psychological maturity much sooner in those trying days; a problem we thankfully are no longer faced with. Nowadays, irresponsible experimentation may (and too often does) result in a teenage pregnancy. While this is objectively and naturally fine, in our cosmopolitan world, it is often tragic.
According to the Department of Basic Education, 20,000 school-aged children became pregnant in 2014 alone. I consider myself a proponent of logical reasoning, and it is thus that I will say there is nothing inherently wrong with this. The context is what makes it worrying. It is no secret that the vast majority of these pregnancies – but certainly not all – occur in relatively poor schools or communities. This, taking South Africa’s welfare state into account, is a strain not only on the communities or the families themselves, but on the entire country. According to the South African Social Security Agency (Sassa), paupers will receive R330 for each child, as a welfare grant. This is very little in isolation, but taking the remainder of our welfare infrastructure into account, as well as the fact that this applies to all parents, not only teen parents, it amounts to a massive burden on taxpayers.
Our cosmopolitan lifestyle goes further. Teenagers simply do not possess the maturity or experience in life to be good parents off the bat. Many end up being great parents, and nobody is ever truly ready to be a first time parent, but considering firstly the poverty in which the majority of South Africans find themselves and secondly the pampered nature of our time (few of us, including the poor – those closest to our Middle Age ancestors – can hunt, fish, build and fend for ourselves off the land), becoming a parent at such a young age can destroy or significantly delay the upward mobility of the person, and their immediate families. This is not even taking the burdens the State places on us into account.
This is the essence of why I believe sexual activity (but especially sexual intercourse) between minors should be discouraged. Not by the State. As with most other things, the State’s opinion on sexuality – other than the presence of informed consent – is irrelevant. Parents, families, communities and other voluntary collectives should instill sexual responsibility among the youth. This isn’t me saying that we should raise prudes or necessarily encourage a “purist” lifestyle. I, as any good libertarian should be, am simply a proponent of responsibility (which, I might add, is a natural consequence to logical reasoning). Ensure the youth understand how consequences work.
I generally (certainly not absolutely) support the Amendment Act, however, because making criminals out of children (or their parents) for the occurrence of something that is inevitable is simply totalitarian and clearly illogical. As I explained to someone earlier, no amount of legislating or encouragement or public education is going to make this part of our human nature simply disappear. The age of consent is often based on arbitrary political and policy considerations rather than biological or scientific fact. This is perfectly understandable in many cases but it cannot mean that now we must punish children for doing something they were essentially wired to do.
The stable and loving family (not the “traditional” family concept, which too caused some serious harm to our collective psyche), supported by an open and caring community, is the only thing that will effectively bring about a sense of responsibility among the youth. A broken family (broken often as a result of state welfare), regardless of whether the children attend “sex education” classes at school, won’t always have this outcome. Whether the family is wealthy or poor, black or white, single parent or parental triumvirate, is not a conclusive indicator. Poverty-stricken communities (caused by statism) are usually where the most severe cases of youth sexual activity take place. But that is not the root cause. The family is likely poor due to some or other series of historic or current state economic interventions. The family is likely broken up due to some or other factor which can inevitably be traced back to the State. If the family however, regardless of its status, has the willpower to remain stable and mutually caring, the problems will seem to sort themselves out.