Is teenage pregnancy statutory rape? No … and yes — an urgent call for nuance

Dear Minister Phaahla,

A petition addressed to you is currently being circulated. It calls for a policy obliging healthcare professionals to report “teenage pregnancy” to the police. In this letter, we outline what within the petition is problematic and we advocate for nuanced approaches to youth’s sexual and reproductive health and rights.

The petition starts dramatically, referencing a paper published in the South African Medical Journal (SAMJ) as follows: “According to a paper titled Teenage births and pregnancies in South Africa, 2017-2021 — a reflection of a troubled country: over 12,000 children between the ages of 10-14 years fell pregnant in South Africa”.

This gross number is meant to shock and dismay the reading public. The signatories neglect to mention, however, that this number spans the full five-year period. 

Importantly, though, gross numbers are never useful in trying to understand a phenomenon. This is why fertility is usually spoken of in relation to 1,000 of a population. The SAMJ paper indicates that the deliveries to people between 10 and 14 years increased from 1.1 per 1,000 population (in that age category) in 2017 to 1.5 per 1,000 population in 2021. These numbers are more meaningful and could be seen as cause for concern.

This should lead to the question, “What exactly is of concern?” The authors of the SAMJ paper conclude that the increases “may be due to disruption of health and school services with decreased access to these as a result of Covid-19”. As is widely known, during Covid-19 lockdowns, reproductive services were severely compromised with, inter alia, contraceptive stock-outs and lack of access to services such as abortion. The authors’ conclusion points succinctly to the arguments made by health activists: social conditions need to be attended to so as to promote health and well-being. 

The signatories of the petition proceed to indicate the following with reference to the Department of Basic Education’s (DBE) 2021 Policy on the Prevention and Management of Learner Pregnancy in Schools: “The policy makes pregnancy by a minor a notifiable incident, where the school is obligated to notify authorities of the pregnancy”.

This is not true. It is the Sexual Offences Act, with which the policy aligns itself, that governs the reporting of statutory rape.

It is also not true that “pregnancy by a minor” automatically represents statutory rape. There are two very important points that need to be remembered in terms of the legal definition of statutory rape: (1) it concerns people below the age of 16, not minors (who legally are below the age of 18); (2) consensual sex between people below the age of 16 or where the age difference is no more than two years is NOT statutory rape. The exact wording of the act is replicated below:

“(1) A person (‘A’) who commits an act of sexual penetration with a child (‘B’) who is 12 years of age or older but under the age of 16 years is, despite the consent of B to the commission of such an act, guilty of the offence of having committed an act of consensual sexual penetration with a child, unless A, at the time of the alleged commission of such an act, was (a) 12 years of age or older but under the age of 16 years; or (b) either 16 or 17 years of age and the age difference between A and B was not more than two years.”

Admittedly the DBE Policy is a little ambiguous. It states, “if the pregnant learner is under the age of 16, this would require mandatory reporting to the SAPS and entails civil or criminal proceedings against the male partner if he is over the age of 16”.

Does this mean that all pregnant learners under 16 years old should be reported, with only those with a partner age difference being prosecuted? Or does it mean that only those pregnant learners with male partners who are over 16 years old should be reported? It is not clear. The former interpretation is problematic in terms of the Sexual Offences Act, as indicated in clause (b) cited above.

The signatories then go on to petition you, Minister Phaahla, to institute “a similar policy, that makes pregnancy by a minor a notifiable incident in the healthcare sector”. Of course, this is not necessary because the Sexual Offences Act already states that “a person who has knowledge that a sexual offence has been committed against a child must report such knowledge immediately to a police official”.  This would obviously include healthcare providers.

Negative policy effects

The call “teenage pregnancy = statutory rape” has appeared in other spaces as well, most notably recent consultative forums set up by the Department of Social Development in the lead-up to a framework on Sexual and Reproductive Justice. We warn against this clarion call as it does little to acknowledge the complexities of youth sexualities and reproduction.

We know that stigma and shame are significant barriers to people seeking healthcare. For example, young people may avoid going to contraception clinics for fear of healthcare provider judgement and stigma.

Pregnant young people tend to report late and irregularly for antenatal care, and to hide their pregnancies from family and school authorities. As a result, obstetric outcomes for people below 20 years of age remain an area of concern.

A fear of being reported to the police will add a further barrier to young pregnant people reporting to the clinic or informing their teachers or family, thereby compromising their own and their foetuses’ or infants’ health. Additionally, young people may avoid seeking safe and legal terminations of pregnancy. Already it is estimated that about half of abortions are performed illegally outside designated sites.