Structural faults hamper justice for many victims of sexual abuse in schools

SECTION27 and Lawyers Against Abuse are supporting children who have suffered sexual abuse by their teachers. Here, members of the SECTION27 legal team describe two students’ long struggle for justice.

Schools are critical sites for HIV prevention, and are identified as such by the National Strategic Plan for HIV, STIs and TB 2012 – 2016. In particular, eradicating sexual abuse of girl learners is a priority. However, there remain many barriers to doing this effectively.

In a report published by Human Rights Watch titled ‘Scared at School: Sexual violence against girls in South African schools’, it was reported that “on a daily basis in schools across the nation, South African girls of every race and economic class encounter sexual violence and harassment in class and at school, which impedes their realisation of the right to basic education”. The report was published on 1 March 2001, calling on the South African government to take urgent steps in response to sexual violence against female students.

The problem, however, remains severe and widespread and the solutions wholly inadequate.

SECTION27 and its partner organisation Lawyers Against Abuse are responding to specific cases of sexual violence in schools. The two cases below illustrate shortcomings in the way that government bodies currently deal with such abuse, and the lack of political will that seems to exist both in teaching unions and the DBE to overcome this challenge.

[box]On a daily basis South African girls of every race and economic class encounter sexual violence and harassment in school.[/box]

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Case 1: Ntombi *

Raped by her teacher and failed by the police.

Ntombi (not her real name) is a primary school learner. She was 12 years old when her teacher threatened her at knifepoint, kidnapped her, and then drugged and brutally raped her.

Soon after the attack, Ntombi reported the rape to at least two teachers and to the school principal. They tried to influence her not to pursue the case, because “the accused teacher has lawyers and she would never succeed”. These teachers had an obligation under the Children’s Act 38 of 2005 and the Criminal Law (Sexual Offences and Related Matters) Act 32 of 2007 to report the abuse rather than to convince Ntombi to keep quiet.

Although the case was reported to the provincial Department of Education (DoE), the local teaching staff continued to coax Ntombi to withdraw her complaint and forgive her teacher. This conduct was in breach of Ntombi’s rights and their obligations.

Ntombi’s parents reported the rape to the police six weeks after it occurred. Police took the child to hospital for a medical examination. It revealed evidence of penetration, corroborating her report. Ntombi was also showing classic signs of post-traumatic stress disorder such as fainting, depression, withdrawal from family and friends, insomnia and flashbacks. She ran away from home three times and her academic performance became severely affected.

Case closed

Three months later the police investigation was closed, citing the refusal of school officials to talk to the police plus the fact that Ntombi was not pregnant. No steps were taken to compel the school to provide information that might support the investigation. Nor was any recognition given to the fact that despite not being pregnant, Ntombi had nonetheless been brutally raped by the very person who should have been looking after her.

The DoE investigation also ceased without apparent reason. Even the DoE itself could not trace the investigating officer who had been appointed to gather evidence.

To make matters worse Ntombi was now being threatened by the accused teacher in an attempt to make her drop the case. The accused also harassed Ntombi’s mother whenever she went to the school.

Around this time, an activist from the Treatment Action Campaign (TAC) who had assisted SECTION 27 with the case was threatened at gunpoint as well. There is reason to believe that this incident was related to Ntombi’s case.

Protection order

SECTION 27 was therefore forced to apply for a protection order for Ntombi and her family to safeguard them from harassment. We also applied for a peace letter for the TAC activist.

The process of obtaining a protection order is ordinarily simple enough to be done without lawyers. In Ntombi’s case it took six lawyers and legal arguments by an advocate for the protection order to be granted. This was due to the fact that a relationship between a school student and a teacher is not legally considered a “domestic relationship” as defined in the Domestic Violence Act 116 of 1998. Therefore a protection order under this Act could not be readily obtained.

Fresh trauma

During the process of applying for the protection order, Ntombi was forced to face her rapist. On numerous occasions she even had to sit in the same room as him. Her mother was required to give formal evidence and cross-examined so that the magistrate could decide whether to grant the order. This created almost unbearable trauma for Ntombi and her mother.
After a full day’s argument by Ntombi’s advocate, the magistrate extended the definition of a domestic relationship to include that of a teacher-learner relationship, on the basis that teachers step into the shoes of parents in terms of looking after learners at school. He therefore granted Ntombi and her mother a protection order.
This was a small victory for Ntombi, but a big victory for young students across South Africa.  Theoretically, at least, school students now have greater protection from abuse by their teachers. However, it also highlights a very basic challenge for access to justice: how many learners who seek protection orders have access to legal teams of this size, if at all?

New legal protection

In future cases, SECTION 27 will be able to use the enacted Protection from Harassment Act 17 of 2011. This act is even simpler than the Domestic Violence Act; it provides for broader protection and does not depend on the existence of a domestic relationship. However, because the regulations have not yet been promulgated, protection by this Act is not yet available. At the time of writing this article, there is no indication as to when the regulations will be finalised.

Having secured a protection order for Ntombi and her mother, we proceeded to find out what had happened with the DoE investigation. The investigating officer could not be traced and therefore the DoE was obliged to appoint a new person who began the investigation afresh. Ntombi had no choice but to give another statement to the new officer because her original statement could not be found.

We asked that the accused teacher be placed on precautionary suspension during the investigation. This is a statutory obligation on the DoE, which arises when there are charges are of a serious nature and/or there is a threat of interference with the investigation.

The DoE had, however, not taken steps to suspend the accused teacher pending the outcome of his disciplinary hearing. They agreed to do so only when we pointed out their legal obligations. The investigation was finally completed after a further five months, and a date for the disciplinary hearing was set for the accused.

Evidence in camera

At the disciplinary hearing Ntombi was allowed to give evidence in camera through an intermediary in a separate room. Following technical difficulties with the equipment used, Ntombi’s rapist and his union representative walked into the intermediary room unannounced to confirm that it was in fact Ntombi giving evidence against him. That afternoon Ntombi collapsed and was hospitalised for extreme stress.

On conclusion of the disciplinary hearing, the presiding officer found in favour of the accused. He found that Ntombi’s case lacked credibility because she had not reported the rape immediately after it happened. This finding is incompatible with the law which states that a negative inference cannot be drawn  from the length of time it takes for a complainant to report a case.

Ntombi was also unable to answer some of the questions put to her after she had seen her teacher in the intermediary room, and was very emotional while giving her testimony. The presiding officer noted that the accused teacher was calm and collected during his testimony, making his version of events appear more plausible.

We have since requested that the matter be taken on appeal to the MEC for Education. SECTION 27 has made legal submissions on aspects of the case. These include the psychosocial effects of sexual violence and the legal ban on drawing inferences from delays in reporting cases. Eight months later, Ntombi is still awaiting the outcome of the appeal.

We continued to trace the police investigation and met with the prosecutor to try to understand why the case had been closed. The prosecutor said that from the docket it was clear that the investigating officer had been reluctant to investigate the matter. This foot-dragging had produced a poor investigation and insufficient evidence for a successful prosecution. The prosecutor ordered that the investigation be continued thoroughly and assured Ntombi that this would now be carried out. It did not happen.

Since the case first began there have been four different investigating officers. Each has begun the investigation afresh and collected new statements from Ntombi and her mother, adding to the ongoing trauma experienced by Ntombi and her family.

The current investigating officer has tried to convince Ntombi to withdraw the case. Due to the interruptions and staff changes, her docket remains in chaos. We do not know if or when a criminal case will be brought against the accused teacher.

Ntombi has moved to a new school in an effort to put the trauma of the rape behind her. She now receives counselling and has a volunteer to help her with academic work. However, until the cases are finalised by the DoE and the criminal courts, she can never be fully at ease.

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Case 2: Fikile *

Abused by her teacher and failed by the provincial DoE

In 2008, Fikile (not her real name), a primary school student, was raped by her school principal in his office. She immediately lodged a complaint with the police and the DoE.

Three years after the case was reported, the principal was convicted of rape in a criminal court. He appealed the conviction and was granted extended bail awaiting resolution of the appeal. The appeal has not yet been finalised.

Following his rape conviction, the DoE called the principal to a disciplinary hearing. There, he was found not guilty of gross misconduct. Although that finding has been taken on appeal to the MEC for Education, the MEC has issued specific instructions not to resolve the matter until the outcome of the criminal appeal.

Until recently, the principal continued to teach the same students at the same school. He was only placed on precautionary suspension a short time ago pending the outcome of the appeal, following numerous demands by SECTION27 and Lawyers Against Abuse.

Burden of proof

The principal’s initial acquittal by the DoE came as a surprise given the less onerous burden of proof in a disciplinary hearing. A disciplinary hearing for gross misconduct requires proof on a balance of probabilities that the principal sexually abused or raped a student.

A criminal conviction, on the other hand, requires proof beyond reasonable doubt that the principal raped a student. This is a far tougher burden of proof than that required by an internal disciplinary hearing. It follows that a finding of guilt by a criminal court will necessarily infer a finding of guilt at a disciplinary hearing.

Fikile’s case, however, remains unresolved and the DoE refuses to conclude it until the criminal appeal is settled.

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Systemic challenges and general recommendations

These two case studies demonstrate the fragmented system South Africa has for dealing with cases of sexual violence in schools. While we have taken steps to address specific obstacles that surfaced in these cases, we also need to be aware of the broader challenges that exist.

Crucially, there is a widespread lack of communication and cooperation between the different government entities responsible for addressing cases of sexual violence. Because these cases involve criminal offences committed in a school environment they require an unusual degree of coordination between police, the DoE and the South African Council of Educators, which is responsible for teacher registration and professional conduct.

This lack of coordination is illustrated by the fact that, in most cases of sexual abuse in schools, these bodies conduct three parallel investigations. This involves the repetitive taking of statements by often inexperienced and untrained officials. Consequently students are made to feel responsible for the sexual violence rather than protected from its recurrence. Often their psychological, emotional, medical, academic and other needs come second to each entity asserting its powers.

Because investigating and presiding officers are often inexperienced or lack the necessary training they frequently draw negative inferences – prohibited by law – from the time that has been taken to report a case. They may also misinterpret the emotional state of children giving evidence. More often than not highly relevant psychosocial factors are not taken into account when investigating such cases or conducting a disciplinary hearing or criminal trial. Specialised training in these areas is vital.

The people with whom students have contact – such as police, nurses, education department officials and other staff members at the school – may lack sensitivity in their interactions with young victims. In many cases the process that follows the report of sexual violence is as traumatic as the violence itself, if not more.

Despite a clear statutory obligation to place on precautionary suspension any teacher accused of serious misconduct, it often takes intervention by lawyers to achieve this. Thus, where families lack access to legal representation – i.e. in most cases – an accused teacher can continue to victimise a student and potentially disrupt a proper investigation.

Teachers and principals accused of sexual violence, on the other hand, are often represented by teaching unions or protected by colleagues at their schools. At times, this protection can feel aggressive and intimidating to learners as well as to DoE and police officials.

Often, teachers accused of sexual violence have better legal protection than student victims. Children can feel lost and alone throughout the legal processes, without the necessary support and understanding of their circumstances. The labour rights of a teacher can end up taking precedence over the rights and best interests of the child involved.

Even where there is a finding of guilt in relation to an instance of sexual violence this does not necessarily mean that the teacher will be removed from the education system.
The Minister of Basic Education recently indicated that 45% of teachers who have been found guilty of sexual offences in the past three years remain in the classroom. The South African Council of Educators has over the past three years received 289 complaints of sexual abuse. Of those teachers found guilty, 62 are still teaching and only 67 have been permanently struck from the teachers’ roll. Only 136 cases have been finalised in the past three years (see figures opposite). This illustrates a failure to apply the laws that require teachers found guilty of sexual violence to be removed from the school environment completely and immediately.

As a result, many cases of sexual violence go unreported. This is an enormous obstacle to finding a sustainable solution to the problem of school-based sexual crimes. Offending teachers go unpunished and can continue to abuse their learners with impunity.

The fact that cases are not reported also undermines any efforts to ascertain the precise extent of sexual violence in schools, or where it is more predominant. And most importantly, we do not know exactly who needs legal, medical, psychological or academic support.

For as long as secondary victimisation of learners goes unaddressed, and sexual violence goes unpunished, there will be fewer cases reported, more cases that attract no consequences, and more teachers who feel they can rape their students with impunity.

[box]The law requires that teachers found guilty of sexual violence be removed from the school environment completely.[/box]

Sustained and coordinated efforts

The growing scourge of violence against women and children has received much media attention in recent months. This attention must be translated into action to prioritise the rights of victims and to protect them from further harm.

Violence against women and children will not be addressed through the efforts of any one organisation working alone. This type of violence requires an integrated approach by all involved. It is only through sustained and coordinated efforts that we can start to tackle the problem of sexual violence in schools and in our broader communities.

By Nikki Stein and Nthabi Pooe

Nikki Stein is an attorney with SECTION27. Nthabi Pooe is a student of law and social justice and a SECTION27 fellow.
* Names have been changed to protect the identity of the students involved.