Almost 8 000 sign petition to have doctors and midwives report underage pregnancies to police

A petition has called on all South African doctors and midwives to report underage pregnancies so police can investigate statutory rape.

The petition, initiated by Kekeletso Khena, urged the health department to follow the Prevention and Management of Learner Pregnancy in Schools Act, similar to the basic education department.

The act states that pregnancy in minors has to be reported to authorities.

“This petition is because there has been a significant increase in underage pregnancies. I am referring to girls that are under the age of 16. Many do not understand that sexual consent is at the age of 16 and therefore sexual intercourse with minors under the age of 16 falls into the category of statutory rape.”

“These cases never make it to court so … these children have participated in what would be termed nonconsensual sex because they cannot consent. As a result, [adults] who are sleeping with children are getting away with it.”

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“We started this petition because this should be a notifiable incident to make sure when they have to treat girls under 16 they report it to the police so the age the father can be [determined]. It is important that we are protecting children from paedophiles because people who have sex with children are exactly that,” said Khena.

At the time of publishing, the petition had 7 844 signatures. The goal is to reach 10 000 before it will be handed to the Department of Health.

Statutory rape

Chief director for Women Maternal and Reproductive Health at the National Department of Health, Dr Manala Makua told The Citizen while the Department of Health acknowledges that sex before 16 years of age constitutes statutory rape, the legal definition of statutory rape can only be confirmed when the age of both participants is established.

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“It is due to such reasons that clinicians will refer the teenager to social services for further support, investigation and consultations before a decision to report it as statutory rape is pursued. It is a concern that society allows pregnancies of young girls at 10 years,” said Makua.

She added that the department makes provision for a woman of any age to terminate a pregnancy. This is choice-based and not mandatory.

How it is seen legally?

High court attorney Richard Chemaly said because consensual sex is a private issue, using the law to protect victims of sexual assault is difficult for parliaments around the world to navigate.

“South Africa’s age of consent is 16 with a two-year “close-in-age” exception. This exception allows for minors between 12 and 16 to engage in sex as long as their age difference with their partner is less than two years,” said Chemaly.

He said the idea of forcing doctors to report teen pregnancies is out of step with the broader laws of South Africa.

“Even if you overlook the privacy issue and that of self-determination, one also risks deterring rape victims from seeking medical help for fear of repeat trauma in dealing with a rape case they may not want to deal with. Beyond that, there’s an issue of doctor-patient confidentiality that needs consideration,” he said.

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Chemaly believes that from the perspective of the police, one may struggle to justify such a policy that will use a lot of police resources on cases that might have no merit.

“I’d agree that a solution is needed. I just don’t think that putting in such a legal compulsion solves the problem nor is it justified jurisprudentially. If one wants to catch rapists, one can’t do it in a manner that will deter women from seeking medical attention and invade critical privacy policy,” he said.