Penal code amendment decriminalises consensual sex between adolescents

The Penal Code (Amendment) Act of 2023 has decriminalised consensual sexual relations between children, provided that their age difference is two years or less.

In March, Director of Public Prosecutions Masauko Chamkakala issued a notice to the Inspector General of Police and all Officers-in-Charge, Investigators, State Prosecutors and Station Officers highlighting the change in the law.

Chamkakala ordered prosecutors to send all files on cases involving children who engaged in consensual sexual intercourse to his office for review.

He further directed prosecutors not to commence any criminal prosecutions against children who engaged in consensual sexual intercourse without first referring them to his office.

Section 138 of the previous Penal Code criminalised males who had “carnal knowledge” of “girls under 16 years”. The provision was intended to catch adult male predators who exploited young girls.

However, boys who engaged in sexual relations with consenting, close-in-age girls were also caught in the net of this ‘defilement’ provision. They could face penalties as harsh as imprisonment for life for expressing their bodily autonomy.

The previous Section 138 detrimentally effected boys by exposing them to severe, irreversible harm as a result of extended imprisonment.

A child’s education, development, physical and mental health, and social and familial connections can be disrupted, impaired, or even destroyed because of being found guilty of a felony and incarcerated.

Section 138 of the previous Penal Code also violated boys’ constitutional rights. First, in subjecting young boys to lengthy terms of imprisonment, the Section violates their constitutional right to dignity.

Second, the Section undermined the constitutional right to privacy by authorizing intrusions into the private and intimate choices and activities of consenting adolescents.

Third, the Section violated the constitutional prohibition against discrimination on the basis of sex by only subjecting male children to imprisonment for consensual sexual relations, and for failing to protect boys from sexual exploitation.

Finally, given the severe harms that could flow from a conviction under Section 138, the provision violated boys’ constitutional right to equal treatment before the law and to have their best interests and welfare as primary considerations in all decisions affecting them.

With the reform to Section 138, teenagers who engage in consensual sexual activity with similar-in-age peers will now have their rights to dignity, privacy, and equality before the law respected.

The amendment is in line with international human rights norms articulated by the UN Committee on the Rights of the Child, which has declared that states should “avoid criminalising adolescents of similar ages for factually consensual and non-exploitive sexual activity.”

Furthermore, it will allow children to seek health and medical assistance, information and advice relating to sexual matters without fear that male adolescents could face a felony conviction and a term of imprisonment if they disclose that they have engaged in sexual activity. As a result of this amendment, children will be more likely to receive support and assistance to remain healthy, safe, and knowledgeable about the risks associated with sexual activity, sexually transmitted diseases, and unwanted pregnancy.

At the same time, the reformed Section 138 continues to protect young girls from exploitation, and has even recognized that adult women can be abusers and young boys can be exploited.

Since the Amendment, the current law states that adults who have sexual relations with children who are more than two years younger can be punished with up to life imprisonment. It has also raised the age of consent to 18 years.

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*Joelle Besch is an intern at Southern Africa Litigation Centre