Decriminalising AdAbstract
This article critically examines the constitutionality of sections 15 and 16 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 (SORMA) in light of the Constitutional Court’s decision in Teddy Bear Clinic for Abused Children and Another v Minister of Justice and Constitutional Development and Another. Initially enacted to protect children from sexual exploitation, these provisions had the unintended consequence of criminalising consensual sexual conduct between adolescents, thereby infringing upon their constitutionally protected rights. The Constitutional Court held that such provisions violated the rights to dignity, privacy, and bodily and psychological integrity, as well as the best interests of the child. This article explores the Court’s reasoning, the remedial legislative response in the form of the 2015 Amendment Act, and the broader implications for children’s rights in South African jurisprudence.
1. Introduction
In response to South Africa’s deeply concerning rates of child sexual abuse, the legislature enacted the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 (hereinafter “SORMA”) to strengthen legal protections for children. While the objective of safeguarding minors was indisputably legitimate, certain provisions, specifically sections 15 and 16, overreached by criminalising consensual sexual conduct between adolescents. In doing so, Parliament inadvertently transgressed several constitutionally enshrined rights, including the rights to dignity, privacy, and bodily and psychological integrity, as well as the best interests of the child, guaranteed under section 28(2) of the Constitution of the Republic of South Africa, 1996 (“the Constitution”).
The central legal issue before the Constitutional Court in Teddy Bear Clinic was whether the impugned provisions unjustifiably limited these rights and whether such limitations were reasonable and justifiable in terms of section 36 of the Constitution. The High Court had declared the provisions unconstitutional, prompting the Constitutional Court to confirm the declaration of invalidity and pronounce on an appropriate remedy.
2. The Legal Context and the Impugned Provisions
Sections 15 and 16 of SORMA criminalised consensual sexual conduct involving adolescents aged between 12 and 16 years, irrespective of whether such conduct occurred between minors or between a minor and a person slightly older. The prohibited conduct encompassed not only sexual intercourse but also a broad range of intimate acts, including kissing, mutual masturbation, and other non-penetrative sexual contact. Significantly, the Act made no distinction between exploitative sexual conduct and developmentally normative adolescent sexual behaviour.
The applicants before the High Court contended that the criminalisation of consensual adolescent sexual activity infringed upon multiple constitutional rights. These included the rights to human dignity (section 10), privacy (section 14), and bodily and psychological integrity (section 12(2)), in addition to the paramountcy of the best interests of the child (section 28(2)).
In support of their arguments, the applicants submitted expert reports, notably from the late Professor Alan Flisher and Ms Anik Gevers, both specialists in child and adolescent mental health. Their unchallenged evidence underscored that sexual exploration during adolescence is both developmentally appropriate and essential to healthy psychological growth. The experts further warned that criminalisation produced harmful effects, such as feelings of shame, fear, reduced help-seeking behaviour, and diminished adult guidance due to mandatory reporting obligations. These consequences, it was argued, isolated adolescents, thereby increasing their vulnerability rather than protecting them.
3. Judicial Findings
The High Court concluded that the impugned provisions were inconsistent with the Constitution and declared them invalid. It proposed a reading-in remedy to extend the “close-in-age” defence to persons under the age of 18. The Constitutional Court declined to adopt the High Court’s reading-in approach but affirmed the unconstitutionality of sections 15 and 16 to the extent that they criminalised consensual sexual conduct between adolescents.
The Constitutional Court held that the impugned provisions failed the proportionality test under section 36 of the Constitution. While the legitimate aim of protecting children from sexual abuse was acknowledged, the means adopted were neither reasonable nor justifiable. The Court reasoned that the provisions allowed for unwarranted state intrusion into the intimate lives of adolescents and failed to appreciate that such conduct, if consensual and non-exploitative, formed part of normal adolescent development.
Accordingly, the Court declared sections 15 and 16 invalid to the extent that they criminalised consensual sexual conduct between children aged 12 to 16. It further ordered the expungement of criminal and diversion records of all affected children and directed the Minister of Justice and Constitutional Development to ensure the removal of their names from the National Register for Sex Offenders. Parliament was afforded 18 months to cure the constitutional defects.
4. Legislative Reform: The 2015 Amendment Act
Pursuant to the Constitutional Court’s directive, Parliament enacted the Criminal Law (Sexual Offences and Related Matters) Amendment Act 5 of 2015 (“the Amendment Act”). The amendments to sections 15 and 16 introduced significant substantive changes. Most notably, the Act now defines a “child” uniformly as a person under the age of 18 and decriminalises consensual sexual activity between children aged 12 to 15 and those aged 16 or 17, provided the age gap does not exceed two years.
Furthermore, the Amendment Act extended the close-in-age defence under section 56(2)(b) to encompass both sexual penetration and sexual violation. The practical effect of this reform is that an adolescent charged under sections 15 or 16 may now invoke the statutory defence if the criteria concerning age and consent are met, thereby avoiding criminal liability.
The legislative amendments thus align the statutory scheme with constitutional imperatives by recognising adolescents’ evolving capacities and the need to foster—rather than suppress—their psychological and sexual development, while still preserving essential protections against exploitation.
5. Conclusion
The Constitutional Court’s decision in Teddy Bear Clinic represents a watershed in the protection of children’s rights under South African constitutional law. The judgment affirms that children’s rights to dignity, privacy, and bodily integrity must not be sacrificed in the name of protection, particularly when the impugned legislation criminalises developmentally normative behaviour. The Court reaffirmed the centrality of the best interests of the child in all legal matters affecting minors and demonstrated the importance of evidence-based judicial reasoning grounded in developmental psychology and human rights.
Parliament’s response in the form of the Amendment Act constitutes a commendable realignment of statutory law with constitutional values. Nonetheless, as Stevens has correctly observed, while the Amendment Act represents a significant reform of SORMA’s earlier provisions, its long-term efficacy remains subject to potential judicial scrutiny, particularly in cases involving adolescents aged 16 and 17 who fall within the margins of the revised provisions.
In sum, the legislative and judicial trajectory emerging from the Teddy Bear Clinic case underscores the necessity of a nuanced, rights-oriented approach to child protection—one that balances safeguarding the constitutional imperative to uphold children’s evolving autonomy and dignity.
. olescent Sexuality in South African Law: A Constitutional Appraisal of Sections 15 and 16 of SORMA