Education department introduces new rules to curb school sex crime
Code will prevent perpetrators from 'hiding' in the system
The department of basic education has for the first time released a protocol on how schools and officials must deal with pupils who commit rape, sexual abuse and harassment - but not everyone supports it.
The "unacceptably high" level of sexual abuse and harassment at schools has made going to class "terrifying" for some pupils, the protocol document says.
It states that sexual assault and rape must be reported to police and will result in a seven-day suspension. The pupil will be referred for a rehabilitative programme and the school's governing body may recommend the pupil be expelled.
If approval for expulsion is not granted, the pupil will attend counselling or a life skills programme before being allowed to return to class. The department may also place the pupil in another school.
However, in 2016 the Constitutional Court ruled that it was unlawful for a pupil's new school to access their disciplinary record from the previous school before admitting him or her.
This means that principals will not know if they are accepting a pupil facing a criminal rape charge. The court ruled that a pupil's disciplinary record could be seen only once that pupil had been admitted.
While experts have welcomed the protocol as a deterrent to sexual misconduct, South African Male Survivors of Sexual Abuse executive director Rees Mann said the corrective and restorative measures were "too soft and lenient" for pupils older than 15.
"If a 17-year-old has raped a 13-year-old, that is a criminal offence because the capacity for them to know it's wrong is there. They are a much more serious danger to society in reoffending than a 13-year-old raping an 11-year-old," said Mann.
He believed that a new school to which a perpetrator was moved should be informed.
"The principal of the new school must get access to his disciplinary records as this is a serious act [rape or sexual abuse]."
In March, three Grade 8 pupils from Fons Luminis Secondary in Soweto were suspended for allegedly raping a fellow pupil, and two pupils from Reiger Park in Boksburg were arrested for allegedly raping a 13-year-old in February.
Shaheda Omar, clinical director of the Teddy Bear Clinic in Johannesburg, which provides child protection services, supports the protocol.
It would give victims a platform to seek help and provide the "who, what and when directions", she said.
"This will increase reporting rates and could assist in deterring potential victimisers," said Omar.
While the sanctions for offences listed in the protocol may appear to be lenient, Omar said the Child Justice Act looked at giving children a second chance and "as far as possible" keeping them out of the criminal justice system.
"It looks at opportunities for intervention, rehabilitation and reintegration. The Children's Act looks at the best interests of the child, both victim and victimiser."
Children "are usually diverted away from the criminal justice system and referred into a diversion programme", she said.
"The protocol is an excellent piece of work but it needs to be implemented and put into practice for it to have any positive outcome," she said.
Luke Lamprecht, advocacy manager for Women & Men Against Child Abuse, said the protocol was the "most coherent and comprehensive" document from the department he had ever seen.
"But what I would like to see is how they are going to resource it. Is there going to be a child protection officer appointed?"
He also emphasised that the Child Justice Act was "restorative" in nature and that schools needed to act in the spirit of the act.
Ann Skelton, a law professor at the University of Pretoria, said it was a clear requirement under the Sexual Offences Act that any sexual offence must be reported to the police, and that process would run parallel to any internal processes being run by the education department.
Patricia Watson, chief director of social inclusion and partnerships in the department of basic education, said there would be a rise in the number of reports because of increased disclosure.
"We should start seeing a shift in the underreporting by provinces, a trend that we welcome. One should see more willingness on the side of school leadership to keep up-to-date records."