Violence against Children, best interests of the child

This case concerned the constitutionality of certain provisions of the Criminal Law (Sexual Offences and Related Matters) Amendment Act (‘Act’). These provisions criminalised consensual sexual conduct between children aged 12 years to 16 years. The Act termed this consensual sexual violation and, if two adolescents were found guilty of this, both were charged and placed on the sex offender’s register. While there was a ‘close-in-age- defence’, it only applied if the adolescents had an age difference of less than two years. Thus, if a 12- and 15-year-old were caught kissing, the defence would not apply, and both could be prosecuted.
It was found that the provisions violated children’s right to dignity, privacy, and the best interest of the child principle. In terms of dignity, the court found that criminalizing sexual conduct led to stigmatisation in a degrading and invasive manner. Further, because the provisions in the Act relate to those acts which fall within the inner sanctum of one’s personhood, privacy was necessarily implicated. The provisions were also against the best interests of the child as they exacerbate harm and risk to adolescents by undermining support structures, preventing adolescents from seeking help and potentially driving adolescent sexual behaviour underground. The provisions thus harmed the very children they were aimed at protecting.