On Tuesday, 15 February 2022 the High Court of Malawi sitting as the Constitutional Court will hear the case of AJ & TS v State and Others which deals with a Constitutional challenge to the law which makes consensual intercourse between adolescents an offence.
The hearing will deal with two cases of minor boy children who have both been charged with the offence known as “defilement” after engaging in consensual sex with their partners. In terms of section 138(1) of the Malawi Penal Code, “defilement” occurs when anyone “unlawfully and carnally knows” a girl under the age of 16, and those found guilty of this crime can face a life sentence. AJ was 15-years-old and his female partner was 13-years-old at the time of his arrest, whereas TS and his female partner were both 13 at the time of his arrest.
“Defilement” in its current form means that TS and AJ, minor children, could face a very lengthy time in prison for engaging in consensual intercourse with their adolescent female partners. In light of this, TS and AJ are challenging the constitutionality of this section of the Penal Code in so far as it limits their rights to privacy, dignity, equality, is contrary to the best interest of the child and is harmful to their rights to development as children.
The Constitutional Court admitted five amici curiae (“friends of the court”) from jurisdictions like the United States, South Africa and Malawi. These include the Special Rapporteur on physical and mental health, Dr Tlaleng Mofokeng, and the Centre for Applied Legal Studies (CALS) from the University of the Witwatersrand, South Africa. CALS will argue that, since Malawi has ratified United Nations Convention on the Rights of the Child, the Court is bound to consider the principle of “evolving capacity”. Evolving capacity is a principle that emerges from the UNCRC which recognises that children grow and develop and with this their capacities evolve too. In light of this, parents, communities and states must adjust their direction and guidance in order to allow children to exercise their increasing autonomy.
Although the UNCRC includes measures to protect children from sexual violence, it also emphasises that legal guardians and those responsible for children must take into consideration children’s growing maturity in a way that is consistent with their evolving capacity. States are included in the group of individuals that are responsible for children and thus legislation and policy must reflect an understanding of the principle of evolving capacity when this comes to issues around children and this specifically also includes around consensual sexual encounters between adolescents.
The UNCRC similarly calls for states to acknowledge that as children mature they begin to express their own views and opinions and have a right to express themselves freely. In relation to this, the views and expressions of children around sexual encounters should be seen as protected and must be measured against an understanding that as children mature they must be able to exercise more autonomy.
In its general comments, the UNCRC has called on states not to criminalise consensual sexual encounters between adolescents as this negatively impacts various rights of the child, but also the effects of criminalising children and exposing them to the criminal justice system can devastating on their general well-being.
The current offence of “defilement” does aim to protect vulnerable children from being sexually violated by those who are older than them and who may act in coercive and controlling ways in order to take advantage and violate them. However, the net is currently cast too wide in the framing of this offence and incorrectly includes adolescents who are exercising their autonomy to consent to engaging in sexual encounters with one another.
The punishment here similarly does not fit the “crime”, because sending children to prison for exercising their autonomy, in light of the principle of evolving capacity, cannot be justifiable in terms of the Malawian Constitution. The harm that the legislature intended to address in section 183(1) of the Penal Code, can still be achieved through the amendment of the Penal Code to exclude the act of consensual sexual encounters between adolescents. Through this amendment not only will the law aim to protect those who are most vulnerable to the coercive sexual practices of adults but it will also acknowledge the development of the autonomy of adolescents and uphold their rights in terms of the principle of evolving capacity and the Constitution.
*Sheena Swemmer is the head of the Gender Justice programme at the Centre for Applied Legal Studies, University of the Witwatersrand, Johannesburg.