Congratulations to Godfrey Dalitso Kangaude, a doctoral candidate at the University of Pretoria, and Prof. Ann Skelton, Director of the Centre for Child Law at the same university, for publishing the following article in an open access journal. We are pleased to circulate an expanded abstract below:
Godfrey Dalitso Kangaude and Ann Skelton, (De)Criminalizing Adolescent Sex: A Rights-Based Assessment of Age of Consent Laws in Eastern and Southern Africa,” SAGE Open (Oct-Dec 2018): 1 –12. Article online.
Abstract: Age of consent criminal laws imposed on African states during colonialism were inherently patriarchal and gender-stereotypic, and continue to influence country approaches toward adolescent consensual sexual conduct. There are two major policy positions: a punitive and a nonpunitive approach. Most countries adopt the punitive approach. Mostly, legislation does not explicitly criminalize consensual sexual conduct between adolescents, and this leaves a gray area to be filled in by social and cultural norms that perceive adolescent sexual conduct negatively. Punitive approaches have been justified as necessary to curb harms to adolescents resulting from sexual conduct, including teenage pregnancies and sexual abuse. Age of consent laws, especially in their original colonial formulation, deny adolescents–especially girls–sexual autonomy and agency. States focus more on punishment than on taking measures to address the structural antecedents of harms associated with sexual intercourse. States should reform age of consent laws to decriminalize consensual sex between adolescents in accordance with recognized rights of the child.
Drawing upon concepts from childhood sociological studies, the article examines historically and culturally constructed notions of childhood and adolescence and ideas about sexual agency of children. Using findings of a study, conducted by the Center for Child Law of the University of Pretoria, on age of consent laws in Eastern and Southern Countries, the article addresses questions about the rationale for age of consent laws, and whether and how these laws could be reformed to better align with the rights of the child. The article also examines these questions through the lens of court decisions in South Africa, Kenya and Zimbabwe that dealt with the issue of criminalisation of adolescent consensual sex. The article makes a case for decriminalisation because criminalisation infringes the sexual agency of adolescents and infringes on a host of rights including the right to dignity, equality and privacy. Criminalisation also impacts on other aspects of the well-being of the child and adolescent. including sexual health and protection from harms related to sexual conduct.
This 12-page article: is online here.
- C.K.W. v Attorney General & Another  eKLR, Petition 6 of 2013 (High Court of Kenya at Eldoret). [Court upholds criminalisation of adolescent consensual sex, ignores gender bias in the law.] Decision online.
- S v. Brian M. [surname editorially abridged]  ZWHHC 106, CRB No. B467/14 (High Court of Zimbabwe at Harare). [Male’s sentence reduced for adolescent sex.] Decision online.
- Teddy Bear Clinic for Abused Children and Another v Minister of Justice and Constitutional Development and Another (CCT 12/13)  ZACC 35; (Constitutional Court, South Africa). [Laws criminalising adolescent consensual sexual conduct suspended, pending review by Parliament.] Decision online.
- Martin C. v. Republic Criminal Appeal No. 32 of 2015, April 26, 2016 (High Court of Kenya, at Malindi). [sexual relationship between adult man of 23 and girl of 14 is not “defilement” because it was consensual.] Decision online.
- The State v. CF (A Juvenile) HH 143-11, CRB 5,320/10 July 21, 2011 (High Court of Zimbabwe). Consensual adolescent sex is allowed. Decision online.
Highlight: Adolescent Consensual Sexual Conduct.
Legal Grounds III: Reproductive and Sexual Rights in Sub-Saharan African Courts
Pretoria: Pretoria University Law Press (PULP), 2017. Online edition with decisions and updates. Entire book, 228-pages. Printed copies available.
Compiled by the Coordinator of the International Reproductive and Sexual Health Law Program, reprohealth*law at utoronto.ca For Program publications and resources, see our website, online here. TO JOIN THIS BLOG: enter your email address in upper right corner of this webpage, then check your email to confirm the subscription.