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Overview of the Current Safeguard/Policies for Protection of Learners from
Sexual Harassment and Sexual Violence
Schools should be safe havens for learning and an opportunity to instil tolerance and respect for human rights in learners. When the school system becomes unsafe and a violent playground is created it is important that institutions and governments respond appropriately. A failure to deal with the issue of sexual violence in schools reinforces and legitimises violence against women and gender inequality. A school environment where sexual violence and harassment is tolerated compromises the right of learners to enjoy education on equal terms - a lesson that is damaging to all children and at sharp variance with South Africa's constitution and its international obligations.
The consequences of gendered or sex based violence within the education system has been summarised in the Human Rights Watch Report16 to be as follows:
The Constitution of South Africa contains a number of provisions, which safeguard children and learners within South Africa. These provisions will now be examined before considering other legislative provisions protecting children.
Section 29 provides that everyone has the right to a basic education. In order to achieve this right certain duties are imposed on the South African government, such as, the duty to ensure that no learner's right to education is impeded and that all learners enjoy equal unimpeded access to education. In addition all children are protected in that Section 28 (1)(d) of the Constitution protects all children from maltreatment, neglect, abuse or degradation.
Section 12(1)(c) of the Constitution in turn provides that all persons have the right to freedom and security of the person, which includes the right to be free from all forms of violence from either public or private sources. The rights to bodily and psychological integrity, dignity, privacy and equality enshrined in the Bill of Rights further protect learners.
Notwithstanding the constitutional entrenchment to the right to freedom from violence,17 the South African government has likewise committed itself to the protection of the rights of victims of sexual violence through policies operating at a national level18 and also through international human rights documents. At a national level there has been recognition that a legal framework for addressing sexual offences needs to be developed in terms of which the substantive and evidential laws on sexual violence will be reviewed as well as the legal procedures relating to sexual violence. Justice for victims has also been a focus area of law reform. This accords with our international obligations in terms of the CEDAW,19 which commits states to pursue, by all appropriate means and without delay, a policy of eliminating discrimination against women.20 CEDAW also sets out specific recommendations regarding duties resting on states. It should be noted that one of the duties set out is that:
The Declaration on the Elimination of Violence Against Women22 specifically enjoins member states to pursue policies to eliminate violence against women. In this regard the member states undertake to pass legislation to punish violence against women.23
In relation to the duties imposed on the South African state our Constitutional Court has held that to the extent that violence against women is recognised as a denial of human rights such as the right to life; the right to equality; the right to liberty and security of person; the right to equal protection under the law; the right to be free from all forms of discrimination; the right to the highest standard attainable to physical and mental health; and the right not to be subjected to torture, or other cruel, inhuman or degrading treatment or punishment, South Africa has an obligation to take measures to protect those who are most vulnerable.24
The Convention on the Rights of the Child in turn places a positive duty on government to take appropriate steps in order to prevent sexual violence within the school system.25 Article 29 stipulates that the purpose of education is to foster development of the child's personality, talent, and mental and physical abilities to their fullest potential in order to prepare such child for responsible life in a free society, in the spirit of understanding, peace, tolerance, equality of the sexes and friendship. Likewise, the African Charter on Human and Peoples' Rights26 obliges signatory states to ensure the elimination of discrimination against women and children. Thus, where violence occurs in educational settings the enjoyment of the fundamental right to education is impaired.
This then the constitutional and international framework
within which the rights of learners needs to be contexualised. In giving
effect to these rights the South African government has enacted legislation
and quasi-legislation in order to protect learners and women from all
forms of violence. In addition, the South African government has introduced
certain initiatives order to address crime and violence in schools.
These are summarised below:
To date South Africa has not implemented a national policy on how to deal with sexual violence and harassment in schools. The Western Cape Education Department has published a policy document called "Abuse No More: Dealing Effectively with Child Abuse" which provides detailed guidelines on how to approach sexual harassment and sexual violence within the school system. At this time it is the only policy of its kind in the country. It deals with punitive, preventative, remedial and educational aspects relating to sexual abuse within the school system.
Whilst intended for educators, the policy can also be referred to by learners, parents and others who would like to know more about the nature of child abuse, and how school personnel are obliged to respond to signs of child abuse among learners in their care. The Policy sets out detailed steps, which the school should follow in the event that it becomes aware of an incident/s of sexual abuse. Furthermore, it places a duty on the school to educate learners around the nature of child abuse and their rights in this regard. The policy document provides guidance for schools in relation to how to handle disclosure. In this regard it sets out the steps, which should be followed where a learner discloses an incident of sexual abuse. These are set out as follows:
When a learner is the alleged offender then the Policy provides that the steps as set out above (steps 1 - 9) should be utilised in order to assist the alleged learner offender. This should be seen as an attempt to prevent the alleged offender from committing further abuse. Additional procedures are also available if necessary, such as referring the alleged offender for emotional support and therapy if necessary or arranging for temporary suspension of the alleged offender, depending on the circumstances and only if in the best interest of other learners and the school. (If the offence was serious enough to merit suspension or expulsion the school principal will refer the matter to the governing body of the school.) A critique of this policy and its impact is considered below.