CHILD ABUSE INFORMATION
There is a lot of confusion about the reporting of child abuse. It is imperative that we educate the public about the definitions of and procedures relating to child abuse. This article hopes to empower people with the knowledge to assist our children to be safe, sound and happy.
DEFINITION OF A CHILD
A child is defined in the Constitution of the Republic of South Africa, 1996 (Act 108 of 1996) as a person under the age of 18 years. As soon as a person reaches the age of 18 years he or she is regarded as an adult and is treated as such in the criminal justice system.
WHICH LAWS OPERATE IN ABUSE OF CHILDREN’S MATTERS?
- THE CONSTITUTION
Chapter 2 of the Constitution, Act 108 of 1996 contains the Bill of Rights which vests all South Africans with fundamental human rights which must be respected, protected, promoted and fulfilled by the state and individuals. The Constitution is supreme law which means that it is the highest law in South Africa. Any law that is inconsistent with the Constitution is invalid.
The South African Constitution explicitly addresses the rights of children and affords them specific protection. Section 28(1)(d) holds that “every child has the right to be protected from maltreatment, neglect, abuse and/or degradation”.
- CHILDREN’S ACT 38 OF 2005
The Children’s Act and its amendment 41 of 2007 (promulgated in 2010) addresses children’s rights in its entirety. Section 110 specifically deals with the protection of children and resonates with the UN Convention and the AU Charter on the protection of children’s rights.
- THE SEXUAL OFFENCES ACT 32 OF 2007
The Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 came into operation at the end of 2007 (“The Act”). The Act recognises the fact that the occurrence of sexual violence in South Africa is very high and that women and children are particularly vulnerable to sexual violence. The purpose of this Act is to provide survivors of sexual violence with better legal rights and protection than the rights and protection that was afforded to them prior to the coming into operation of the Act. Ultimately, the Act aims to do away with sexual violence in South Africa.
The new Act has made various changes to the laws on sexual violence and has also created new laws. The state must act in accordance with these changes.
- THE CHILD JUSTICE ACT 75 OF 2008
The Child Justice Act came into effect on 1 April 2010. The Act creates a separate criminal justice system for children, and any child who commits a criminal offence will be dealt with in terms of the Act, including those who commit acts of cyber bullying which fall within the ambit of the definition of a specific crime, and those engaged in sexting which is classified as child pornography.
- Films and Publications Act 65 of 1996
Deals with child pornography issues such as texting of material with pornographic content containing children.
WHAT IS ABUSE?
ABUSE, in relation to a child, means any form of harm or ill-treatment deliberately inflicted on a child, and includes-
(a) assaulting a child or inflicting any other form of deliberate injury to a child;
(b) sexually abusing a child or allowing a child to be sexually abused;
(c) bullying by another child;
(d) labour practice that exploits a child; or
(e) exposing or subjecting a child to behaviour that may harm the child psychologically or emotionally.
Legal definitions of “Abuse” reaches further also legally include bullying, sexting and pornographic material.
WHO IS LEGALLY COMPELLED TO REPORT ABUSE?
Section 110 of the Children’s Amendment Act mandates “any correctional official, dentist, homeopath, immigration official, labour inspector, legal practitioner, medical practitioner, midwife, minister of religion, nurse, occupational therapist, physiotherapist, psychologist, religious leader, social service professional, social worker, speech therapist, teacher, traditional health practitioner, traditional leader or member of staff or volunteer worker at a partial care facility, drop-in centre or child and youth care centre” to report when they suspect that a child has been abused “in a manner causing physical injury, sexually abused or deliberately neglected”.
(Ordinary citizens are given the discretion to report abuse but are not compelled to do so in terms of section 110.)
Section 54(b) of the Sexual Offences and Related Matters Act, clearly states that failure to report sexual abuse or exploitation of children and mentally handicapped persons is deemed an offence and is punishable with a fine or imprisonment of up to 5 years, or both, if the person is found guilty.
It even relates to sexting in that: a person who has knowledge that a sexual offence has been committed against a child (such as exposure to or displaying of genital organs, anus or female breasts to a child, or exposure or display of child pornography to a child) must report such knowledge immediately to a police official. Failure to report such information is an offence, and if convicted the person can be sentenced to a fine or imprisonment for a period not exceeding five years, or to both a fine and such imprisonment.
Films and Publications Act 65 of 1996 – failure to report receipt of “sexted” child pornography to the police will amount to a section 27(2) offence
WHAT SHOULD BE REPORTED
Reasonable grounds for suspicion/reasonable belief of suspicion of abuse or ill treatment of a child should be reported.
‘Grounds’ must be based on the facts obtained from objectively exploring (with one’s five senses) a particular situation or set of evidence. Once the facts are established by looking, hearing, smelling and sometimes tasting, the facts are usually evaluated. The test is the subjective interpretation of the facts contemplated.
The reasonable person should be deemed similarly situated to report the matter. ‘Reasonable grounds’ are said to exist if this reasonable person would come to the same conclusion under these similar circumstances.
In terms of the Sexual Offences Act, reporting can also be based on the ‘disclosure’ of the victim and evidence obtained from a secondary source (eye witness) likewise gives rise to the legal obligation to report to the relevant authorities.
Child Protection Services refers to the protection of a child up to the age of 18 ‘in need of care and protection’.
WHEN IS A CHILD IN NEED OF CARE AND PROTECTION
Any child who –
is under 18 years old;
- has no parent, e.g. children orphaned by HIV/AIDS;
- has a parent or guardian who cannot be traced;
- has been abandoned or is without means of support;
- displays behaviour that cannot be controlled by his or her parents or by the person in whose custody he or she is;
- lives in circumstances likely to cause or to be conducive to his or her seduction, abduction or sexual exploitation;
- lives in or is exposed to circumstances that may seriously harm the physical, mental or social well-being of the child;
- is in a state of physical or mental neglect;
- has been physically, emotionally or sexually abused or ill-treated by his or her parents, guardian or the person in whose custody he or she is or being maintained; or
- is suffering from a nutritional deficiency.
CAN I BE HELD LIABLE/BE SUED IF THE ABUSE IS NOT PROVED/IF THE ALLEDGED PERPETRATOR IS NOT FOUND GUILTY?
Mandatory reporting which requires reporting by law, when supported by a set of facts and done without any malicious intent, will not give rise to any claims of liability. The person reporting will not be held liable for damages under these conditions, even if it is ascertained that there is no abuse or neglect of any kind.
PROCEDURES FOR REPORTING ABUSE
The person who suspects the abuse or the designated person should complete the attached Form 22 immediately and should contact a Social Worker from the designated Child protection organization for the area in which the child resides such as a Child Welfare Society or the Department of Social Development and the Child Protection Officer of the South African Police Services and the local Children’s Court.
- PRO BONO.ORG (Free Legal Aid) 011 339 6080
- LEGAL AID BOARD (Free Legal Aid) 016 421 3527
- SAPS 08600 10 111
- CHILDLINE 0800 055 555
- COUNCIL FOR CHILD WELFARE 0861 424453