The recent court appearance of a 14-year-old boy who raped younger boys and stabbed a 12-year-old girl has put the spotlight on whether child offenders should be treated differently to adults. The case highlights the dilemma of weighing up the clashing rights of child sex offenders and their victims. The case came to the Cape Town High Court earlier this year on review from the magistrate’s court, which had found the boy guilty of raping three boys, aged six and seven, and of attacking the girl.
At the centre of the matter was whether he should be listed in the national register of sexual offenders. Two weeks ago, the high court found that the law prescribing that all sexual offenders be registered was unconstitutional.
A section of the Criminal Law (Sexual Offences and Related Matters) Amendment Act prohibits a court from taking into account whether the offence involved kissing or rape, and whether there was consent, and does not allow offenders to make representations as to why they should not be registered. The court gave parliament 18 months in which to amend the section and send it to the Constitutional Court for ratification. It said including a child’s name in the register had “far-reaching implications”, including stigmatisation, and affected the child’s rights to privacy and dignity.
Morgan Courtenay, a lawyer for the Centre for Child Law, which joined the case as an interested party, said one of the “severe” effects of being registered was that it limited employment opportunities. People listed on the register would not be allowed to work in the same environment as children, and in certain instances offenders have to disclose their convictions to employers. They might not be allowed to adopt children.
Though the aim of the register is to protect children and the mentally disabled from sex predators, Courtenay said children should not be treated like adults because they were still developing.
“Generally, they do not understand the consequences of their actions and should be treated differently to adults, who can differentiate between right and wrong,” he said, suggesting that the register be limited to adults.
Kenneth Klopper, the boy’s lawyer, agreed. He argued that children were not mentally or physically “on a par” with adults, which is why the law makes special provision for them, with a focus on rehabilitation.
Cecil Tsegarie, who represented Justice Minister Jeff Radebe , argued that the register should include all sex offenders.
Tsegarie said this extended to the boy because he had “readily admitted that he is a sexual predator of children in stating in his plea that he lusts for sex with children”.
But the high court found that the listing of a child in the register should be considered case by case.
Justice Department spokesman Mthunzi Mhaga said there were over 5000 offenders on the register, most of them adults.
Until the Constitutional Court rules, no child sex offender will be listed, Tsegarie said.