What is the law’s best possible solution to the ‘Teenage Pregnancy Pandemic’?

What is the law’s best possible solution to the ‘Teenage Pregnancy Pandemic’?
13 Sep 2021

Introduction

As if the turmoil presently engulfing the country was not enough, the recent statistics relating to teenage pregnancy have exacerbated the situation. It has been reported that more than 23 000 girls under the age of 18 have fallen pregnant in the past year (30% higher than the annual average). These are just the reported pregnancies and one can only wonder how many have gone unreported. At this point, there are many challenges that the country is grappling with and children are no exclusion to some of these problems – some pre-date the Covid-19 crisis whilst some have been worsened or exposed by it.

The most significant one for children is the interruption of school programmes following the Covid-19 outbreak. Some have attributed the surge in teenage pregnancy to the outbreak and its concomitant Regulations. As such, the teenage pregnancy crisis presents a profound challenge that needs a concerted effort to be dealt with. Legal intervention is but one tool that can be utilised to deal with it. The statistics at this stage are regrettably not adequately thorough as they do not depict how these pregnancies come about, who impregnate teenagers, etc.

It has, however, been reported and acknowledged that many teenage pregnancies occur as a result of certain family settings whereby breadwinners of households commit sexual acts against children or occur at schools between teachers and learners. Even more worrying are the reports that there are 1 300 new cases of HIV in adolescent girls every week in the country. In all probability, the majority of these sexual acts on children are unlawful and it is in these kinds of instances where the law can play a critical role. Of course, the laws and the legal system as a whole may come short if utilised in isolation. It is for this reason that various stakeholders need to collaborate and fight for the eradication of this crisis. Teenage pregnancies have several serious ramifications for the children, the society at large and for the nation as a whole. In view of this, it is necessary to look at some of the relevant laws and legal remedies in place that may assist with the crisis. This article focuses on the laws aimed at protecting children against sexual crimes; competent criminal offences for sexual crimes; remedies in civil law; etc.

The laws

The Constitution of the Republic of South Africa, 1996

The sexual acts against children fly in the face of the core values of the Constitution – both the express and implied values of the Constitution. Depending on how the sexual act (resulting in pregnancy) occurs, the constitutional rights such as a right to human dignity, right to freedom and security of the person are infringed. Our Constitution jealously protects the rights of children and this is evidenced by the fact that our Constitution dedicates a whole section, Section 28, to children. As such, sexual acts against children offend this particular provision.

Legislation and common law

There are various legislations of Parliament that purport to safeguard the interests and well-being of children. The first example is the Children’s Act which specifically states that one of its objectives is to protect children from any physical, emotional or moral harm or hazards. Similar to the Constitution, it states that a child’s best interests are of paramount importance in any matter concerning the child. Our courts have attached a broad meaning to this provision and it would certainly include protection of children from exposure to sexual acts. Then there is the Sexual Offences and Related Matters Act which has a whole chapter, Chapter 3, dedicated to sexual offences against children. Importantly, the other chapters of the Act also apply to and protect children. Under this Act, there are various sexual offences such as rape, compelled rape, sexual assault, compelled sexual assault, incest, statutory rape, statutory sexual assault, etc. These are criminal offences which are punishable in law. In cases where the perpetrator has infected the minor child with a sexual disease(s), charges of attempted murder may be imposed.

Civil claims for damages

A success of a civil claim or worthiness of pursuing same will depend on various factors. Some of these factors are where the sexual incident occurred, who committed it, the financial status of a perpetrator, the prevailing circumstances, etc. A thorough investigation and interrogation of the relevant circumstances will determine the success of a claim and the worthiness of pursuing a claim. The victim may claim for any of the natural heads of damages such as past medical expenses – these would be the expenses that the child had to incur in connection with the pregnancy and the sexual act; future medical expenses (if any); general damages – for pain and suffering; loss of earning capacity – if the pregnancy/birth or the whole experience leaves the child with a physical, mental, psychological impairments or limitations. In some instances, it may be sagacious to claim for constitutional damages. The applicability of each head of damages will also be bound upon the facts of each particular case. Important to note, it is not necessary to give birth to a living child to pursue either a civil claim or laying criminal charges. Where the perpetrator has infected a minor child with a sexual disease(s), there may be a claim for medical expenses (past and future); emotional shock and trauma; etc.

Ancillary

Further to the above and depending on various other factors, the law provides for termination of pregnancy in terms of the Termination of Pregnancy Act. Depending on the circumstances in which teenage pregnancies occur, it may be necessary to consider protection orders and collaborating with various other stakeholders such the SAPS and trauma counselling.

Conclusion

The law is broad enough to afford cover and protection to children against teenage pregnancy and exposure to sexual acts. However, for the laws to effectively serve their purpose, there needs to be an active enforcement; there needs to be an awareness of such laws and their enforcement; and there needs to be a will to hold perpetrators to account.

See also:

(This article is provided for informational purposes only and not for the purpose of providing legal advice. For more information on the topic, please contact the author/s or the relevant provider.)
Mtho Maphumulo
Mtho Maphumulo

Mtho Maphumulo graduated at UKZN with several distinctions, academic awards and Dean’s Commendation. During this period, he served active leadership roles in many students’ organisations including the Black Lawyers Association... Read more about Mtho Maphumulo

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