Most countries have a law stipulating the age by which a child may legally decide to engage in sexual acts. This helps to protect children against sexual exploitation by adults, but also guards against young girls being sold off in marriage. Bear in mind that "child" means a person under the age of 18.
The "age of consent" is the minimum age at which a person is considered legally competent to consent to sexual acts. A person younger than the age of consent (i.e.: underaged) cannot legally confirm that a sexual act in which they participated was consensual. To state it another way, in the eyes of the law, they are not yet old enough to consent to sex.
As a result, if a person over the age of consent engages in sexual activity with a partner who is underaged, this activity may be considered statutory rape. Age of consent laws vary considerably worldwide. Most countries require young people to be at least 14 before having sex.
Age of consent around the world.
The Age of Consent in South Africa
In South Africa, the age of consent is 16 for boys and girls, and includes same-sex sexual experiences. However, our law states that no child under 12 is capable of giving consent to sex, therefore any sexual act with a girl or boy under 12 constitutes rape or sexual assault.
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Exceptions:
- Children will not be criminally charged if they have sex if both partners are between 12 and 16 years old.
- It’s not criminal for a child under 16 to have sex with a partner less than 2 years older.
Source: Sections 15 and 16 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007.
Age of Consent Around the World
Age of consent laws vary considerably worldwide. Most countries require young people to be at least 14 before having sex.
For instance, in Angola and Burundi, the age for sexual consent stands at 12 years whereas in Bahrain, it stands at 21 years.
In the United States, the age of consent is decided individually by each state and ranges from 16 to 18. Most countries in South America choose 14 as the age of consent, including Paraguay, Peru, Brazil, Bolivia, and Ecuador.
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Legal Frameworks and Adolescent Rights
Ensuring sexual and reproductive health and rights (SRHR) of adolescents are encapsulated in human rights instruments and policies that have been signed, ratified, and adopted by individual states and nations. Improving adolescents’ SRHR is fundamental to the advancement and guarantee of a crises-free adolescence and productive life later as adults.
When adolescents are denied of SRHR, it predisposes them to a plethora of risky sexual behaviours, social delinquencies and adverse sexual and reproductive health (SRH) outcomes such as adolescent pregnancies, sexually transmitted infections (STIs), including HIV among others.
The South African (SA) Constitutional Court found that in certain specific circumstances, adolescents have a constitutional right to engage in sexual behaviour without incurring criminal sanctions. This rights-based approach to adolescent sexuality is reflected in the recently revised Criminal Law (Sexual Offences and Related Matters) Amendment Act No.
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SA adolescents are at risk of HIV, sexually transmitted infections and pregnancy owing to high-risk sexual behaviour, physical, social and structural challenges, and limited access to key primary SRH services, among other factors. Laws permitting independent consent to SRH services are an important mechanism to ensure accessible services for adolescents.
It is argued that requiring parental permission may deter adolescents from accessing SRH services, including HIV testing. For example, an empirical study in Connecticut, USA found that a significantly higher proportion of adolescents volunteered for HIV testing once the parental consent requirement was abolished.
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Parental consent may be a barrier to adolescents’ accessing services for several reasons, such as that adolescents may not wish to disclose their sexual activity to their parents. In the SA context, the requirement for parental consent is also problematic for those adolescents who do not live with their parents (e.g.
Challenges and Disparities
Disparate approaches to the ages at which children can consent to sex and make use of SRH services can be a problem. The primary principle on which access to SRH services is based is the capacity to consent, as this is an essential element of informed consent. In SA law, children are considered minors until the age of 18, and do not have the capacity to make legally binding decisions.
However, in line with their evolving capacity, the legislature has expressly described a number of SRH rights that are applicable to adolescents. An examination of the capacity requirements suggests that the legislature has used five broad approaches to addressing adolescent capacity to consent to SRH services:
- Age Requirement
- Age and Express Capacity Requirement
- Age and Express Public Policy Requirement
- Express Public Policy Requirement
- Complete Prohibition for Adolescents Under 18
The National Health Act and Research
The National Health Act, No 61, 2003 in South Africa is the first effort made by the government to protect health-related research participants under law. Implemented on March 1, 2012, the law mandates active consent from a parent or legal guardian for all research conducted with research participants under the age of 18 years.
While the intentions of the National Health Act are to provide legal protection to research participants, the Act leaves no room for independent adolescent consent for studies exploring their sexual and reproductive health. The issue of participant informed consent remains central to any research project in the medical and social sciences.
There are generally two primary forms of parental consent used in social science and health services research with adolescents:
- Active Consent: Necessitates a ‗yes' response from the parent, in order that a young person may participate in research.
- Passive Consent: Assumes the parent's affirmative response, unless the parent indicates otherwise.
Requiring active parental consent procedures may also hinder research by adding a prohibitive cost to research and by introducing a potentially significant sample bias into the data. The new Act specifically mandates consent from a legal guardian, despite the fact that many children in South Africa do not live with a parent or a legal guardian, but rather with another caretaker or custodian.
We suggest that laws governing research in South Africa must consider its unique social circumstances. The National Health Act will prevent children without a legal guardian from accessing research that could be of great benefit to them in terms of reducing rates of sexual risk behavior, pregnancy and STI/HIV transmission.
Recommendations and Conclusion
Adolescent sexual and reproductive health research in South Africa is of great importance, as teenage pregnancy, sexually transmitted disease and HIV-rates remain high in this population. Maintaining high standards in our ethical approach is critical to protect vulnerable research subjects from potential harm.
However, to preserve the right of young people to self-determination, we call for a re-examination of the National Health Act guidelines for research.
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