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Eliminating the Ongoing Sexual Harassment and Sexual Violence in South African Schools
by Faranaaz Veriava*
The Education Rights Project (ERP) is a project established as a partnership between the Centre for Applied Legal Studies (CALS) and the Education Policy Unit (EPU) at Wits. It aims to assist vulnerable segments of society in overcoming obstacles that hinder an individuals access to education. The ERP has chosen to prioritise as one of its key areas of intervention in the education sector, the elimination of sexual harassment and sexual violence against learners in schools. This decision was informed by widespread media reports as well current research studies detailing the persistent and systemic sexual harassment and sexual violence against girl-learners in schools. These reports and research all emphasised the detrimental effects of sexual harassment and sexual violence on the education of, in particular girl-learners.
The work of the ERP in respect of the sexual harassment
and sexual violence in schools has to date focussed on conducting a systematic
review of all studies to determine the prevalence and impact of sexual
harassment and sexual violence in schools, and then to analyse the existing
legal framework for the protection of learners with a view to developing
a working strategy to eliminate the ongoing sexual harassment and sexual
violence against learners. The ERP has commissioned research from experts
at the Womens Legal Centre in Cape Town to assist in this regard.
The Prevalence & Impact of Sexual Harrasment & Sexual Violence
The latest and most in-depth study to date detailing the prevalence and impact of sexual harassment and sexual violence against learners is that conducted by Human Rights Watch in 2000. Human Rights Watch investigated cases of alleged rape, sexual abuse, and harassment involving schoolgirls in South Africa. It found that sexual abuse and harassment of, in particular girl-learners is widespread in South Africa.
The report looked at the impact of sexual harassment
and sexual violence on learners and found that it erected a discriminatory
barrier for young women and girls seeking an education. That is,
the report found that sexual harassment and sexual violence had a profoundly
destabilising effect on the education of girl children. All the rape survivors
interviewed reported that their school performance suffered and it was
harder to concentrate on their work after their assaults. Some of the
girls reported losing interest in school altogether, some of the girls
transferred to new schools, other simply left school entirely.
Thus, the report found that the States failure
to protect girl learners and respond effectively to violence violated
their bodily integrity and their right to education. The report urged
the Department of Education to develop a National Action Plan to address
the issue of sexual harassment and sexual violence, and to develop and
disseminate procedural guidelines governing how schools are to address
allegations of sexual violence and harassment, specifically detailing
how schools should treat victims of violence and those who are alleged
to have committed such acts.
Our Bill of Rights contains a number of provisions which protect the rights of learners and which impose duties on the State to protect learners from sexual harassment and sexual violence. These include inter alia: The right to basic education which includes the right to equal unimpeded access to education (Section 29); the right to dignity, (Section10); the right to freedom and security of person (Section 23); the right of children to be protected from maltreatment, neglect, abuse or degradation (Section 28(1)(d)). The extent of the obligations imposed on the State by these rights is set out in Section 7(2) that requires the State to respect, protect, promote and fulfil the rights in the Bill of Rights. In Government of the Republic of South Africa and Other v Grootboom and Others 2001 (1) SA 46 (CC) at 82 C-E, the Constitutional Court interpreted these obligations in respect of Section 28 to mean:
Thus, the State is obliged to establish a regulatory
and enabling environment for learners to be effectively protected from
sexual harassment and sexual violence. Below is a brief analysis of the
efficacy of the current regulatory framework.
The Department of Education, has been stated by the Human Rights Watch report no national policy on how to deal with sexual violence and sexual harassment in schools. To date only the Western Cape has developed guidelines for addressing sexual harassment and sexual violence in schools. This policy deals with the punitive, preventative, remedial and educational aspects in relation to sexual abuse with the school system. The guidelines are however not mandatory which therefore questions its enforceability.
The research commissioned by the ERP having highlighted
these limitations in the current regulatory framework in protecting learners
from sexual harassment and sexual violence, are of the view that such
limitations may constitute a failure a on the part of schools and the
Department of Education in the duty of care which these organs
owe to learners under their supervision to ensure that no harms comes
to learners, thereby making such organs liable in terms of the law of
The Department of Education has been pro-active in protecting learners from other forms of harassment and violence in schools. In terms of the Schools Act it has prohibited corporal punishment in schools. In the Constitutional Court case of Christian Education South Africa v Minister of Education 2000 (4) SA 757, when a coalition of Christian Schools applied to the Court to permit corporal punishment at their schools on religious grounds, the Department successfully defended this prohibition on the grounds of its overall duty to protect learners from all forms of violence. The Department has also provided schools with manuals outlining alternative forms of discipline to that of corporal punishment. The Department has also very recently amended the Schools Act and developed regulations pursuant to the amendment for the banning of initiation practices at schools. These recent developments contain precise definitions of prohibited conduct in the initiation context and set out the steps to prohibit and prevent such conduct. The absence of similar steps to protect learners from sexual harassment and sexual violence, in the context of the overwhelming statistics of sexual violence against women and its impact on women is extremely disheartening to say the least.
The ERPs future interventions will therefore focus
on being involved in cases that seek to hold schools and the Department
accountable in terms of their duty of care towards learners.
The ERP also intends engaging government and advocating for an enforceable
national policy for the prevention of sexual harassment and sexual violence
Notes on the National Department
of Education's "Public School Policy Guide: Rights and Responsibilities