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