Unpacking the 2-year age-gap provision in relation to the decriminalisation of underage consensual sex in South Africa

Abstract

Over the past 24 years, the South African criminal justice system has undergone major transformations in relation to sexual offences, including sexual violence against children. More recently, there have been a number of developments to certain provisions in the law relating to sexual offences involving children. In response to the Teddy Bear Clinic Court Case and Constitutional Court ruling, sexual offences legislation related to underage consensual sex was amended. In this regard, the legislation now decriminalises underage consensual sexual activity between adolescent peers aged 12 - 15-year-olds. In addition, the law provides broader definitions for consensual sexual activity, including decriminalising consensual sex and sexual activity between older adolescents (above age of consent for sex, i.e. 16 - 17-year-olds) and younger adolescents (below the age of consent for sex, i.e. 12 - 15-year-olds), granted that there is no more than a 2-year age gap between them. One of the reasons for decriminalising consensual sexual activities between adolescent peers was because the expanded legislation cast the net for sexual offences so wide that the effects had far-reaching harmful impacts, particularly for girls, who would then be exposed to the criminal justice system. This paper focuses on unpacking the 2-year age-gap provision in SA legislation relative to selected better-resourced countries, including the rationale and the potential implications for adolescents (outside of the 2-year age gap provisions), for researchers, service providers and policy-makers. It concludes with some recommendations for law reform and further research.