Mandatory Reporting of Sexual Abuse Under the Sexual Offences Act and the 'Best Interests of the Child' (Report‪)‬

The Criminal Law (Sexual Offences and Related Matters) Amendment Act (1) (hereafter referred to as the Sexual Offences Act) provides that in respect of statutory sexual assault--but not in respect of consensual sexual penetration--it is a defence that both the accused were children under the age of 16 years and the age difference between them was not more than 2 years at the time of the alleged offence. The question arises whether the requirement that consensual sexual penetration between children under the age of 16 years where the age difference between them was not more than 2 years, is unconstitutional--given that it undermines the 'best interests of the child' principle and several other fundamental rights in the Constitution, (2) as well as number of statutes designed to protect children, such as the Choice on Termination of Pregnancy Act (3) (hereafter referred to as the Choice Act), the Children's Act (4) and the Child Justice Act. (5) If the provision is unconstitutional it should be amended to provide the same defence as is provided in the case of consensual sexual assault where both children were under the age of 16 years and the age difference between them was not more than 2 years. (6) Reasons for not reporting cases of consensual sexual penetration involving children under 16 years where the age difference between them is not more than 2 years