SEXUAL ABUSE OF A LEARNER: RIGHTS OF CHILDREN AND DUTIES ON TEACHERS
Mr Peters is a teacher at a school and has been advised by a learner, Felicia (who is under the age of 16 years), that she is being sexually abused by another teacher at the school. Mr Peters is concerned for Felicia’s safety, but does not know what Felicia’s rights are and what his duties are to assist her. Mr Peters contacted LegalWise for further advice in this matter.
What is sexual abuse?
• Sexual abuse is where a person has sexual relations with another person without his/her consent, such as rape or sexual violation.
What are the rights of a child who is being sexually abused?
• The rights of a child must be protected at all costs and every child has the right to:
o dignity, such as not to be humiliated;
o freedom and security, such as not to be subjected to any form of violence and not to have his/her body touched in an inappropriate way, which would include sexual abuse;
o bring criminal charges against any person who has committed an offence against him/her, such as that a child who has been sexually abused by his/her teacher has a right to report this to the South African Police Service (“SAPS”). A child can report an offence without the assistance of his/her parents or legal guardians, however, it is advisable that a child consult with them for assistance;
o report any incident, such as sexual abuse by a teacher, to another teacher at his/her school; and
o bring a civil claim in court (such as a claim for damages) against a teacher who sexually abused him/her. The child will need the assistance of his/her parent or legal guardian to bring a civil claim in court.
What are the duties of a teacher to assist a child who is being sexually abused?
• A teacher is required to place the interests of a child first.
• While a child is at school, a teacher has a duty of care over such a child. This means that a teacher must look after the child and act as the child’s parents, especially where there may be a threat to the safety of the child.
• A teacher also has a duty to report any knowledge that s/he may have that a child is being sexually abused.
• Except for the teacher, there is a general duty on every person who has knowledge of a child being sexually abused to report that knowledge.
How must a teacher report that a child is being sexually abused?
• A teacher can report any knowledge of a child being sexually abused to the SAPS. This can be done by contacting them or by going to the nearest police station to make a written statement.
• A teacher can also report his/her knowledge to one or more of the following, who can assist him/her to report it to the SAPS:
o school governing body;
o Department of Social Development; and/or
o child protection organisation, such as Child Welfare.
• The reporting of sexual abuse can be done by contacting one of the abovementioned institutions, however, it is advisable to report the sexual abuse in writing and to keep proof of it being reported.
What happens when a teacher is suspected of sexually abusing a child?
• A teacher who is suspected or accused of sexual abuse towards a child may be charged with misconduct in terms of the Employment of Educators Act (“Act”) or the school’s Code of Conduct.
• The teacher’s school will conduct a disciplinary enquiry into the charge of misconduct and if s/he is found guilty, the Act provides that s/he must be dismissed.
• Criminal charges may also be brought against the teacher if the sexual abuse is reported to the SAPS.
• The teacher may also be listed on the National Register of Sex Offenders (“NRSO”) and the National Child Protection Register (“NCPR”).
• One of the consequences of being listed on the NRSO or the NCPR is that a teacher might not be appointed as a teacher again in the future.
What happens if the child gave consent to sexual relations with a teacher?
• It will be an offence if a teacher had sexual relations with a child who is under the age of 16 years, even though s/he gave consent to sexual relations.
• It will not be an offence if a teacher had sexual relations with a child who is over the age of 16 years and s/he gave consent to sexual relations.
• If a teacher had sexual relations with a child over the age of 16 years and such a child gave consent to sexual relations, the Act provide that the teacher must be dismissed if the school finds him/her guilty of having sexual relations with the child.
Kindly note that any names used in the article are for illustrative purposes only.