While the commitment to ending violence must extend across all 365 days of the year, the 16 Days of Activism Against Gender-Based Violence shine a much-needed spotlight on this issue.
The Centre for Child Law (CCL) has a long history of taking a stand in protecting children from sexual violence. Most recently, it has targeted section 56(2) of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 (“Sexual Offences Act”), which allows adults accused of statutory rape to argue that they were ‘deceived’ into believing the victim was 16 years or older.
This defence, colloquially referred to as the “defence of deception,” effectively shifts the blame from the offender to the child and perpetuates harmful stereotypes and rape myths. It is time to hold adults accountable and ensure our laws prioritise the protection of children.
What is the “defence of deception”?
The law expressly prohibits and criminalises adults engaging in any form of sexual conduct with a child aged between 12 and 16 years. These crimes, known as ‘statutory rape’ and ‘statutory sexual assault’, seek to protect children in the age cohort from sexual exploitation.
There is, however, a loophole that is often exploited by sexual predators. The loophole is found in section 56(2) of the Sexual Offences Act and allows offenders to escape liability in instances where they were deceived by the victim into believing that the child was over the age of 16 years.
The deception, as understood in our law, need not be done consciously by the victim; their appearance, behaviour, or circumstances may legally be considered to have amounted to a deception of the accused. This means that an adult can avoid punishment by simply arguing that a child looked, acted or was found in a place that would suggest that they were 16 or older, even if the adult made no effort to confirm their age.
How does this defence harm children?
Victim blaming: This defence unfairly shifts focus from the adult’s responsibility to the child’s appearance or actions. It implies that the child is at fault for the adult’s actions, a notion that is deeply harmful.
Perpetuating stereotypes: The defence reinforces harmful stereotypes, including that children ‘tempt’ adults into sexual relationships. This is unacceptable and contradicts the principle that adults bear the responsibility to avoid engaging in sexual conduct with children.
Unequal power dynamics: Adults hold power over children in many ways – physically, emotionally, and socially. Laws should reflect this imbalance and ensure that children are protected, not blamed.
Disproportionate impact on girls: The defence disproportionately affects girls, who are more likely to be victims of statutory rape. By allowing offenders to argue that they were misled by a girl’s appearance or behaviour, the law perpetuates harmful gender norms and excuses exploitation.
It is outdated: The defence unjustifiably seeks to excuse adults from acting recklessly in putative sexual relationships. In Embrace Project NPC v Minister of Justice and Correctional Services [2024] ZAGPPHC 961 (30 September 2024), the high court correctly found this was constitutionally repugnant.
The case of S v Mohale:
In S v Mohale, the court overturned the conviction of an adult accused of statutory rape. The accused relied on the “defence of deception,” claiming that the child’s appearance misled him into believing she was older. The court even referred to a controversial method called the “Tanner scale” to assess the child’s physical development—a method meant to measure sexual maturation, not age.
This case highlights how the law enables adults to escape accountability, leaving child victims without justice. It also underscores why Section 56(2) must be declared unconstitutional.
A Harmful History
The “deception defence” has roots in outdated and misogynistic legal traditions. It originates from a time when laws prioritised protecting men from accusations of rape, often at the expense of women and children.
Today, its continued use reflects these harmful ideas. It excuses adults from taking responsibility for their actions and perpetuates gender-based violence. In a country with high rates of violence against children, we cannot allow such defences to remain in our laws.
The Path Forward
In March 2024, the CCL challenged the constitutionality of section 56(2) of the Sexual Offences Act. The organisation argues that the law violates children’s rights and fails to hold offenders accountable. Research from the Gender, Health and Justice Research Unit supports this position, highlighting how the defence undermines efforts to combat gender-based violence.
Encouragingly, the Minister of Justice has committed to reviewing this provision and potentially introducing new legislation. However, the CCL will proceed with its challenge if no action is taken within six months.
Why This Matters
Protecting children from sexual exploitation is not just a legal issue—it is a moral and societal imperative. Laws like section 56(2) of the Sexual Offences Act create opportunities for exploitation and perpetuate harmful gender norms. By removing this defence, we can take a critical step toward a future where children are safe from harm and adults are held accountable for their actions.
Join the Fight Against Gender-Based Violence
As we observe 16 Days of Activism, let us remember that this is not just a campaign—it is a call to action. We all have a role to play in protecting children from harm. Let us demand stronger protections for children and ensure that laws reflect our commitment to justice.
The time for change is now. Together, we can build a South Africa that is free from violence and exploitation.
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