The Teddy Bear Clinic Constitutional Court case: Sexual conduct between adolescent consenting children aged under 16 years decriminalised and a moratorium on the reporting duties of doctors and others

Abstract

The Constitutional Court in the Teddy Bear Clinic appeal case held that the sections of the Sexual Offences Act that impose criminal liability for sexual offences on adolescent children under 16 years of age are invalid. The invalidity was suspended for 18 months to allow Parliament to correct the Act’s defects. A moratorium was imposed on all investigations into, arrests in, prosecutions in, and criminal and ancillary proceedings regarding such section 15 and 16 offences. This includes the duty to report consensual sexual conduct between children under 16 years of age in terms of section 54 of the Act – pending Parliament’s correction. However, it is submitted that the ‘best interests of the child’ principle in the Children’s Act and the Constitution should guide all obligatory reporting situations involving sexual and other conduct of children, irrespective of whether they are adolescents under 16 years old or between 16 and 17 years old.