Lesson 19 14 May 2024 - Sexual Violence in Schools.pptx
Transcript
Education Law and Policy Reporting Sexual Violence WEEK 6: 14 MAY SESSION 19 Sexual violence is usually committed as a show of power by one person over another person where there is already an unequal power relationship between the perpetrator and the victim. It is therefore often commi...
Education Law and Policy Reporting Sexual Violence WEEK 6: 14 MAY SESSION 19 Sexual violence is usually committed as a show of power by one person over another person where there is already an unequal power relationship between the perpetrator and the victim. It is therefore often committed by a person known to the victim in a personal space, such as home or school, and tends to affect some groups of people more than others. Groups that are particularly vulnerable to sexual violence include for example, women, children, poor people, and people with disabilities. Special measures should be taken to protect and promote the rights of these groups. Poor black girls are particularly vulnerable, especially in poor, rural areas. Sexual violence in schools Learners in poorly resourced schools are more likely to be victims of sexual violence - Poor toilet facilities - no doors, far away Poor learners who must walk far distances to school Poor learners are more vulnerable to sexual advances by teachers because teachers have status and money. Families of learners will sometimes negotiate payments to the family from the teacher who sexually abused the learner in exchange for not reporting the teacher. Laws and Policies protecting learners from sexual violence committed by teachers and other learners Constitution Section 12 - each person has a right to bodily integrity and not to be treated in a cruel, inhuman or degrading way. Section 10 - each person has the right to dignity. Section 28 - special protection of children’s rights - to be protected from maltreatment, neglect, abuse or degradation. This gives special rights to children against abuse of any sort and places a special duty on society to protect them. Section 29(1)(a) - everyone has the right to a basic education and the right to learn in a safe and secure environment. Sexual violence affects a learner’s ability to access their right to a basic education because learners often feel uncomfortable and threatened at school, and/or are scared, traumatised and unable to focus on learning. Many learners drop out of school because of the trauma, especially if the perpetrator remains in school with the learner. The Constitution Section 7 of the Constitution states that the state must “respect, protect, promote and fulfil” the rights in the Bill of Rights. “respect & protect” - A person’s dignity, bodily integrity and rights as a child must not be interfered with. “promote and fulfil” - positive measures must be taken by the state or others to ensure that people can enjoy the rights protected in the Bill of Rights. Section 8(1) & (2) of the Constitution states that the state and natural or juristic persons are bound by the Bill of Rights. Public schools and departments of education have a duty to protect learners’ rights to a basic education and must actively protect learners from being hurt or violated. This includes properly punishing teachers who commit sexual offences, and appropriately disciplining learners. Individuals/ companies are also bound by the Bill of Rights. This means for instance that any person who interferes with another person’s bodily integrity, dignity or rights has infringed that person’s constitutional rights and must be held responsible for it, and that independent schools are also obliged to protect learners. Section 9 - everyone has the right to be treated equally. Criminal Law (Sexual Offences & Related Matters) Amendment Act, 2007 Defines and criminalises certain sexual acts For example: It is a criminal offence for an adult (anyone over the age of 18) to have sexual intercourse with a person under the age of 16. An adult who commits this act with a child commits the criminal offence of statutory rape. Section 54(1) specifically criminalises the failure to report any sexual offence that a person knows, or suspects, has been committed against children. Up to 5 years imprisonment. NB! The first person a learner tells about being sexually assaulted or raped at school is often another teacher. If the teacher ignores the learner or tells them that they should pretend the sexual violence did not happen, S54 means that the teacher can be jailed or otherwise punished by a court. Criminal Law (Sexual Offences & Related Matters) Amendment Act, 2007 Act also provides for the establishment of a national Sex Offenders Register If convicted of a sexual offence against a child - including rape, statutory rape and sexual assault - section 41(1)(a) of the Act says that the person may not be employed to work with a child in any circumstances. Any person convicted of sexual offences against a child or a person who is mentally disabled will have their name recorded in the Sex Offenders Register. Unfortunately, register has only recently become operational. When employing an educator - employers must check the register Employer can obtain a certificate from DoJCD to confirm a name is not on register. If not, obtain a police clearance certificate & affidavit from potential employee. The Children’s Act The Children’s Act gives content to and supplements the special rights of children in the Constitution. It binds natural and juristic persons, such as schools or state institutions. The Children’s Act says that every decision regarding children must be made in the “best interests of the child”; children must be protected from physical or psychological harm caused by “subjecting the child to maltreatment, abuse, neglect, exploitation or degradation or exposing the child to violence”. The Children’s Act codifies the common law principal of ‘in loco parentis’, which refers to a person who steps into the shoes of a child’s parents for a specific purpose. It means that a person acting in loco parentis, such as a teacher, has a responsibility to “(a) safeguard the child’s health, well-being and development; and (b) protect the child from maltreatment, abuse, neglect, degradation, discrimination, exploitation, and any other physical, emotional or mental harm or hazards”. This is why even a consensual romantic or sexual relationship between a learner over the age of 16 and a teacher is still unlawful. A teacher is supposed to behave like the learner’s parent and bears responsibility for a learner in the same way that a parent bears responsibility for a child. It’s an unequal power relationship and never truly consensual. ‘In loco parentis’ also gives teachers a responsibility to protect learners from being hurt by each other. Children’s Act Places a duty on teachers to report acts of sexual assault and rape of a minor. The teacher must report the offence to SAPS and to the provincial Department of Social Development (DSD). This means that a teacher who knows a colleague is sexually abusing a learner can be held criminally liable for sexual abuse, because their failure to report means that they are implicated in allowing it to happen. The Act establishes the National Child Protection Register (different from Sex Offenders Register.) The CPR contains two lists: Part A includes details of children who have been abused and/ or neglected, to assist with giving them special protection and preventing their further abuse and neglect; Part B includes the details of adults who have been found to be unsuitable to work with children. Children’s Act Any person who has been convicted of murder or rape of, or assault with the intent to do grievous bodily harm to, a child, or of possessing child pornography or of human trafficking, is automatically deemed unsuitable to work with children under the Act and their name should be included on the CPR. A court may also order that a person must be listed on Part B of the Child Protection Register, at its discretion. People listed in Part B are not allowed to work with or have any access to children. The CPR is private, but allows people in designated child protection organisations, as well as members of the police who work on child protection, to access the register. All institutions working with children should check this list before employing anyone. SASA Section 8 of SASA - code of conduct for learners, which should clearly indicate what steps are to be taken against a learner who commits a serious offence at school, such as any act of sexual violence. A criminal case can also be opened up against a learner. Employment of Educators Act Offences = “misconduct” or “serious misconduct” For example: section 17(1)(c) of the EEA states that an educator having a sexual relationship with a learner at the school where he or she is employed is an act of serious misconduct. The HOD or school principal must give written notice to the teacher of a disciplinary hearing. The hearing must be held no earlier than five days after delivery of the written notice and no later than ten days after. Guilty of serious misconduct: employer has no discretion: the teacher must be dismissed. Serious misconduct includes sexual assault committed on a learner, student or other employee, having a sexual relationship with a learner of the school where the teacher is employed, and causing a learner or student to do either of these things. The HOD may suspend the educator on full pay for a maximum period of three months while investigations for the disciplinary processes are concluded, especially where there is a belief that the presence of the educator may jeopardise any investigation into the alleged misconduct, or endanger the well-being or safety of any person at the school. Teachers have the right to appeal. SACE Act SACE has a Code of professional Ethics All teachers must be registered with SACE and are subject to the Code Any form of sexual misconduct is a breach of the Code of Ethics. Educators must refrain from courting learners at any school, having improper physical contact with learners, having any form of sexual relationships with learners at any school and using language or behaving in a way that is inappropriate in their interaction with learners. In terms of the SACE Code, an educator is required to inform SACE and/or the relevant authorities of alleged or apparent breaches of the Code. The school may also lodge a complaint with SACE. S23(1) of SACE Act - teacher may be removed from the SACE register for a breach of the Code of Ethics. Protocol for the Management & Reporting of Sexual Abuse & Harassment in School Protocol ensures the school community provides appropriate and timely responses to both learners and school staff who have been abused/ harassed, whether perpetrators are learners, teachers or anyone else - covers anyone employed by a school. Applies to incidents of sexual abuse that happen on or off school premises, during or out of school hours, during the school terms or school holidays. Time of disclosure is irrelevant Sets out roles and responsibilities of various actors Reporting Guidelines The Protocol sets out in detail guidelines for the procedure to be followed once a case has been reported. A learner, parent or anyone else can report an incident verbally or in writing or both. The Principal or SGB or whoever the report is made to must provide a written report to the circuit manager. The person to whom a report is made is not allowed to question or to verify the truthfulness of the allegations when they are reported. Their job is just to listen and note the allegations and report them. The report must be done with care, sensitivity and confidentiality. This will ensure that the learner victims are protected from additional and unnecessary emotional trauma. The person to whom the incident was reported (principal, grade head, member of the School Management Team, teacher or circuit manager) must then follow the reporting procedures. This includes informing the School-Based Support Team and reporting to the circuit manager, the DSD, the school’s governing body and the Police. Other protection mechanisms for learners A person who has been abused by a teacher should report them to the school principal. If the principal is the perpetrator of the abuse or if the principal does not report the abuse to the provincial department soon, a learner or their family can write directly to the provincial department. The provincial department must investigate the matter and may suspend the teacher while they are doing so. If a learner is being harassed or abused by their teacher or another learner, they may apply for a protection order through the Protection from Harassment Act, 2011. Sometimes a learner will need stronger protection than offered in the Protection from Harassment Act. If a learner is sexually violated by their teacher, or emotionally, verbally or psychologically abused, harassed or stalked, they can apply for a protection order through the Domestic Violence Act, 1998. Thank you
