A contradiction in terms? The promotion of adolescent sexual rights and the prevention of sexual violence

• Jurisdiction: South Africa
• Citation: 2020 Acta Juridica 63
• Author: Lutchman, S.
• Published date: 14 September 2020
• Pages: 63-85
• Date: 14 September 2020

63

A contradiction in terms? The promotion

of adolescent sexual rights and the

prevention of sexual violence

SALONA LUTCHMAN*

This ar ticle is a contr ibution to the ongoing national discou rse on

adolescent sexuality. By juxtaposing adolescent sexu ality with the

high levels of ad olescent sexual violence, t he article seeks to hi ghlight

the tensions and challenges embedded i n the current protectionist

narrative. The art icle argues that adolescent sexual violence has a

gendered dimension, with g irls bei ng the dominant vict ims and

boys the dominant perpetrators. However, in order to underst and

adolescent sexual violence, one ha s to rst understand t he missi ng

discour se, which is adolescent sexua lity. It is argued that cons tructive

approaches gear ed towards curbing adole scent sexual violence should

deal with t he inherent gender inequal ity embedded in adolescent

sexual agency and violence.

I IN TRODUCTION

The Teddy Bear Clinic1 decision of the Constitutional Court

completely altered the chi ldren’s rights landscape in South

Africa. The court overwhelmingly found that a law criminalising

‘normative’2 or developmentally appropriate adolescent sexual

behaviour (behaviour ranging from kissing and petting on one

end of the spectrum to sexual intercourse on the other) was

unconstitutional as it infringed the right to privacy, the right to

dignit y, and the best interests of the child principle.3 Stopping

short of referr ing to a sexual ri ght, the court found that adolescence

was typied as a time of evolving capacities as well as physical

* L LB (UKZN) LL M (New York) PhD Cand idate (UCT); Senior L ecturer,

Depart ment of Public L aw, University of Cape Town; Attorney a nd Notar y of

the High Court of South A frica.

1 Teddy Bear C linic for Abused Ch ildren and Anothe r v Minister of Ju stice and

Constitutiona l Developme nt and Another 2014 (2) SA 168 (CC) (Teddy Bear Clinic ).

2 T his term is used by t he court – see Teddy Bear Clinic (n 1) para 49, quot ing

the applica nts’ founding adav it at para 55.

3 Teddy Bear C linic (n 1) paras 49–79.

2020 Acta Juridica 63

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64 VIOLENCE AGAI NST WOMEN

and mental development and that consensual sexual exploration

was not crim inal behaviour.4 The South Afr ican government was

then obliged to amend the relevant law, the Criminal Law Sexual

Oences and Related Matters Amendment Act.5 After sometimes

passionate parliamentary debates, the law was amended on 3 July

2015, giving eect to the Teddy Bear Clinic decision.

This article is a contribution to the ongoing nat ional discourse

on adolescent sexuality. By juxtaposing adolescent sexuality

with the high levels of adolescent sexual violence, the art icle

seeks to high light the tensions and challenges embedded in the

current protectionist narrative. Seemingly, those who have close

interactions with the adolescent group – educators, parents,

guardians – will have to engage with the amend ment and give

eect to it, thereby enabling an adolescent to safely explore her

sexuality. However, this far-reaching and progressive legal change

must be juxtap osed against hig h levels of adolescent sexual violence

in South Africa.6 How does the state protect a child’s sexual rights

in this context of abuse and sexual violence?

Given the general public’s relatively lukewarm reception of the

Teddy Bear Clinic decision,7 the concern is that those who exert

power over children (state bodies, parents, guardians, teachers etc)

will not promot e the autonomy and sexual rights of t he adolescent.

Understandably, the focus will be on protecting chi ldren from

sexual violence. The ‘missing discourse’,8 that is, an understanding

of adolescent sexuality in a positive sense, is likely to remain

invisible. How then can we protect the rights of adolescents?

4 I bid paras 55, 98.

5 Act 32 of 2007.

6 U BS Opti mus Founda tion Study South A frica: Technical R eport: Sex ual

Victimisati on of Children in So uth Africa: Fin al Report of t he Optimus Fou ndation

Study: South Africa (May 2016) 11, available at http://www.cjcp.org.za/

upload s/2/7/8/4/27845461/08 _cjcp_report _2016_d.pdf (Op timus Stud y).

7 D ullah Om ar Instit ute ‘Debates on conse nting sex bet ween teens continu e’,

available at ht tps://dullahom arin stitute.org.za /news/debates-on-consent ing-

sex-between-teens-continue.

8 D Tolma n ‘Female adolescen ts, sexual emp owerment and desire: A m issing

discour se of gender inequit y’ (June 2 012) 66(11–12) Sex Roles 746 at 747. Tolman

notes that t he focus is on ‘sex ualit y as a ri sk behaviou r and on its potent ial

negative outc omes’ rather th an on ‘adolescent sexual d esire’ in a po sitive sense.

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