Teddy Bear Clinic for Abused Children and Another v. Minister of Justice and Constitutional Development and Another
Constitutional Court of South Africa
Case CCT 12/13  ZACC 35
3 October 2013
Criminal Law (Sexual Offences and Related Matters) Amendment Act, 32 of 2007 (Sexual Offences Act), Sections 15 (Statutory rape) and 16 (Statutory sexual assault)
Constitution, Sections 10 (Right to dignity and to have dignity respected and protected), 14 (Right to privacy), 28(2) (A child’s best interests are of paramount importance), 28(3) (definition of child for purposes of certain legal protections as an individual under the age of 18) and 36 (Limitation on rights only permissible to the extent reasonable and justifiable)
Two not-for-profit organisations, Teddy Bear Clinic for Abused Children and RAPCAN, sued to invalidate statutory rape and statutory sexual assault laws (sections 15 and 16 of the Sexual Offences Act) which criminalise consensual sexual behaviour between adolescents.
Issue and resolution:
Rights to dignity and privacy; best interests of the child. The court ruled that laws that criminalise consensual sexual behaviour between adolescents violate their rights to dignity and privacy and the best interests principle under the Constitution, and are therefore invalid.
Criminalisation of consensual sexual conduct is a form of stigmatisation which is degrading and invasive, and therefore infringes upon one’s right to human dignity. The right to privacy is also violated because the relationships scrutinised under these laws are intensely personal. Further, the laws oblige anyone with knowledge of sexual conduct between adolescents to report it to the authorities, further restraining the adolescents’ privacy and ability to confide in a trusted adult.
According to an expert report, adolescents charged under the challenged laws would suffer an adverse development impact, and these laws did not achieve the positive outcome of deferring harmful effects associated with early sexual conduct, but instead increase adolescents’ risk for negative experiences and outcomes, unhealthy behaviour and poor developmental outcomes by driving sexual behaviour underground. Accordingly, these laws are contrary to the best interests principle under the Constitution.
The state produced no objective data that the limitation of rights was reasonable or justifiable. It failed to produce any evidence to corroborate the claim that sexual activity can have devastating effects from which the legislature intended to protect children, that these provisions limit such risks or that less restrictive means were unavailable. On the contrary, the applicants’ expert report indicated that these laws increase, rather than decrease, the targeted risks. Thus, the court held the contested provisions to be invalid and ordered a moratorium on prosecutions of children thereunder.
On 3 March 2015, the Portfolio Committee for Justice began the public consultation process on the Criminal Law (Sexual Offences and Related Matters) Amendment Act Amendment Bill 18 of 2014, to implement the result of this case and of the J. v. National Director of Public Prosecutions case (automatic recording of the details of minors convicted of sexual offences on the National Register of Sex Offenders is unconstitutional).
The revised law would follow the ruling by decriminalising sexual behaviour between adolescents aged 12 to 15, and adding protections from prosecution for 16- and 17-year-olds who have consensual sex with those under the age of consent, as long as there is not more than a two-year age difference.
The process to adopt the law has taken some time, and the original order invalidating the law and imposing a moratorium on prosecutions has been extended to 5 August 2015.
South African human rights NGOs have welcomed the ruling and the proposed amended law, while certain religious groups have opposed and protested the amended law.
Read CRIN’s case study on this case.
Link to Full Judgment:
This case summary is provided by the Child Rights International Network for educational and informational purposes only and should not be construed as legal advice.