ethico-legal concerns in relation to adolescent sexual intercourse

111 Pages·2016·0.86 MB·English

by  Shivani Chirkut

ETHICO-LEGAL CONCERNS IN
RELATION TO ADOLESCENT SEXUAL
INTERCOURSE

Shivani Chirkut
Student No. 9700671X

A research report submitted to the Faculty of Health Sciences,
University of the Witwatersrand, Johannesburg, in partial
fulfilment of the requirements for the degree of Master of
Science in Medicine in Bioethics and Health Law

Johannesburg, 2015
i
Declaration

I, Shivani Chirkut, student number 9700671X, declare the following
information concerning my research report titled:
Ethico-legal Concerns in Relation to Adolescent Sexual Intercourse
submitted in partial requirement for the degree of MScMed (Bioethics and
Health Law)
 I am aware that plagiariam (the use of someone else’s work without
their permission and/or without acknowledging the original source) is
wrong.
 I confirm that the research report I submitted is my own unaided work
except where I have explicitly indicated otherwise.
 I have followed the required conventions in referencing the thoughts
and ideas of others.
 I understand that the University of the Witwatersrand may take
disciplinary action against me if there is a belief that this is not my
unaided work or that I have failed to acknowledge the source of the
ideas or words in my writing.
 I confirm that this research report has not been submitted to any other
university or educational institution for the purposes of a degree.
01 March 2016
______________________ _______________
Signature Date

ii
In memory of my father Dave Chirkut (1943-2002)
and my mother Dr. Sheila Chirkut (1945-2008).

iii
Abstract

Generally, consensual adolescent sexual intercourse is fraught with a number
of negative outcomes such as socio-economically, where unplanned
pregnancies occur, and medically with the spread of sexually transmitted
diseases that require treatment. The Sexual Offences and Related Matters
Amendment Act 32 of 2007, hereunder referred to as the Sexual Offences Act
(“SOA”), criminalised consensual sexual intercourse between adolescents
aged from 12 to less than16 years.

Since the inception of the SOA in 2007, there seemed to have been relatively
little evaluation of the practical effect of sections 15 and 16 of the SOA on
society. This changed in 2011 when two non-profit organisations, The Teddy
Bear Clinic for Abused Children and RAPCAN (Resources Aimed at the
Prevention of Child Abuse and Neglect) who were the first and second
applicants respectively, challenged the constitutionality of certain sections of
the SOA. These sections are:
- section 15 – entitled “Acts of consensual sexual penetration with
certain children (statutory rape)”;
- section 16 – entitled “Acts of consensual sexual violation with
certain children (statutory sexual assault); and
- section 56(2) – which deals with defences in respect of sections 15
and 16.
iv
In October 2013, the Constitutional Court declared sections 15 and 16
inconsistent with the Constitution. That declaration was suspended for a
period of 18 months to enable Parliament to correct the defects in the statute.

It is widely known that adolescents still engage in consensual sex with each
other regardless of the law. The issues invite an evaluation of the current
legislation in the context of the health and social issues that surround them. In
addition, the impact of the current applicable legislation on the present realism
needs to be scrutinised.

It is essential for alternative interventions to be established which will aid in
reducing the negative impact of consensual adolescent sexual intercourse.
This research report looks at interventions that could be introduced to prevent
adolescent sexual intercourse and alleviate the negativity of outcomes.
Furthermore, the report aims to suggest an ethical, structured approach to
reduce the current negative outcomes of adolescent sexual intercourse. In
order to accomplish this I first describe the legislation that applies to
consensual adolescent sexual intercourse of children between the ages of 12
and 16 years old. This brought to the fore the health practitioner’s practical
experiences of problems associated with this legislation. In addition, I identify
and discuss some ethical problems that health practitioners are confronted
with in relation to consensual adolescent intercourse, in terms of having to
balance their professional legal and ethical obligations.

v
Finally, I propose some recommendations that will inform educational
organisations on the relevant information to be included in sexual and
reproductive health education campaigns. Furthermore, recommendations
are made to relevant national policy-making departments to make strategic
decisions regarding health and social interventions for adolescent sexual and
reproductive health services.

vi
Acknowledgements

To my supervisor Adv. Yolande Guidozzi, thank you for being the most
positive, motivating and pleasant supervisor anyone could hope for. I am truly
grateful for your warmth and encouragement throughout this journey.

A profound thank you to Prof. Ames Dhai and her wonderful team at the Steve
Biko Centre for Bioethics. Prof. Dhai, following your career ignited my desire
to develop my own studies in the medico-legal discipline. Thank you for your
tireless work in developing the next generation of South African bioethicists!

Dr. Kevin Behrens, I am very grateful for your academic advice and support.
Your calmness together with your words of encouragement and wisdom make
you a superb academic role model.

My dear brother Dr. Subash Chirkut, thank you for our great conversations
that somehow always manage to stimulate my creativity and mental approach
to almost any issue. Let’s agree to never stop!

To my parents-in-law Kass and Babes Naidoo, and my aunt- and uncle-in-law
Selvie Perumalsamy and Richard Gibbs, your support and assistance will
always be appreciated. I am eternally grateful for all you do.

My amazing husband, Dr. Kuben Naidoo and my two great children Darshan
(age 4) and Shakti (age 2), thank you so much for tolerating my trips away
vii
from home for academic purposes. I know that my moods and tantrums
during the intense phases of my studying were quite a challenge and I thank
you all for putting up with me with such love and understanding. I am truly
blessed to have you all around me always bubbling with such enthusiasm and
love.

viii
Abbreviations
(in alphabetical order)

AIDS Acquired Immunodeficiency Syndrome
CA Children’s Act 38 of 2005
CC Constitutional Court
CJA Child Justice Act 75 of 2008
CJS Criminal Justice System
CToP Choice on Termination of Pregnancy Act 92 of 1996
DoE Department of Education
DoH Department of Health
DoJCD Department of Justice and Constitutional Development
FP Family Planning
FEDUSA Federation of Unions of South Africa
HCP Healthcare Provider
HIV Human Immunodeficiency Virus
HPCSA Health Professions Council of South Africa
ICPD International Conference on Population and Development
IPPF International Planned Parenthood Federation
ISHP Integrated School Health Programme
MDG Millenium Development Goal
MTCT Mother to Child Transmission
NGO Non-governmental Organisation
NHA National Health Act 61 of 2003
NRSO National Register of Sex Offenders
ix
NSHP National School Health Policy
PID Pelvic Inflammatory Disease
PoA Programme of Action
RAPCAN Resources Aimed at the Prevention of Child Abuse and
Neglect
SOA Criminal Law (Sexual Offences and Related Matters)
Amendment Act 32 of 2007
SRH Sexual and Reproductive Health
SRHR Sexual and Reproductive Health Rights
STI Sexually Transmitted Infection
TLAC Tshwaranang Legal Avocacy Centre
TOP Termination of Pregnancy
UN United Nations
UNCRC United Nations Convention on the Rights of the Child
USA United States of America
WHO World Health Organisation
WLC Women’s Legal Centre
WMA World Medical Association

x