Sugar, spice and criminalised consent: A feminist perspective of the legal framework regulating teenage sexuality in South Africa
Authors Deborah Brand
Affiliations: Senior Research and Teaching Associate: Public Law, School of Law, University of the Witwatersrand
Source: South African Journal on Human Rights, Volume 29 Issue 2, 2013, p. 193 – 218
In South Africa, the legislative framework regulating teenage sexuality is driven by historically established norms of sexual innocence and therefore, adopts a protectionist approach to sexual activity between teenagers which, from a feminist perspective, has a disproportionate impact on teenage girls. Teenage girls walk a particularly thin line between sexual desire and activity. Their existence is also compounded by an environment of violence, poverty and disease as well as the stigmatisation of the sexuality of women and young people. This context of discontinuity and conflict is reflected in the law. Sections 15(2) and 16(2) of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 criminalises sexual activity in the 12 to 16 age group, even in circumstances where sex is consensual and mutually-desired. By failing to differentiate between harmful and mutually-desired sexual activity (or in some circumstances mere physical contact), the 2007 Sexual Offences Act stifles opportunities to develop girls’ sexual autonomy. The statutory offences and punishment are also out of touch with provisions in the Children’s Act and the Choice of Termination of Pregnancy Act that secure access to information, contraceptives and the reproductive rights of teenagers. Rather than NDPP-ordered sex education, the legal framework should be aimed at developing sexual autonomy through creative, effective and government-supported intervention programmes based on education and access to information about sexuality and reproductive health care.