Decriminalisation of consensual sexual conduct between children: What should doctors do regarding the reporting of sexual offences under the Sexual Offences Act until the Constitutional Court confirms the judgement of the Teddy Bear Clinic case?

Abstract

In the Teddy Bear Clinic case, the High Court declared some sections of the Sexual Offences Act unconstitutional, a decision which is still to be confirmed by the Constitutional Court. However, until the Constitutional Court pronounces on the matter, doctors faced with child patients who have been involved in ‘consensual sexual penetration’ or ‘consensual sexual violations’ with other children would be fully justified in not reporting such conduct to the authorities because (i) the High Court has judged the criminalisation of such conduct as unconstitutional, which is likely to be upheld by the Constitutional Court; and (ii) there is no duty to report consensual sexual activities involving children if this would violate the constitutional ‘best interests of the child’ principle.